NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-11761

                  COMMONWEALTH   vs.   ERICK COTTO, JR.



            Hampden.    December 4, 2014. - April     , 2015.

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



Controlled Substances. Constitutional Law, Plea, Conduct of
     government agents, Subpoena, Self-incrimination. Due
     Process of Law, Plea, Disclosure of evidence, Presumption.
     Practice, Criminal, Plea, Conduct of government agents,
     Disclosure of evidence, Presumptions and burden of proof,
     Subpoena. Evidence, Guilty plea, Certificate of drug
     analysis, Exculpatory, Disclosure of evidence, Presumptions
     and burden of proof, Testimonial privilege. Witness,
     Subpoena, Self-incrimination, Privilege. Privileged
     Communication.



     Indictments found and returned in the Superior Court
Department on June 14, 2007.

     A motion to withdraw guilty pleas, filed on April 25, 2013,
was heard by C. Jeffrey Kinder, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Rebecca A. Jacobstein, Committee for Public Counsel
Services, for the defendant.
     Katherine A. Robertson, Assistant District Attorney, for
the Commonwealth.
                                                                     2

     Luke Ryan, for Rafael Rodriguez, amicus curiae, submitted a
brief.
     Glynis MacVeety, for Deon Charles, amicus curiae, submitted
a brief.


     SPINA, J.   On June 14, 2007, a Hampden County grand jury

indicted the defendant, Erick Cotto, Jr., on charges of

trafficking in cocaine (twenty-eight to one hundred grams),

G. L. c. 94C, § 32E (b) (2); unlawful possession of ammunition

without a firearm identification card, G. L. c. 269, § 10 (h);

and being an armed career criminal, G. L. c. 269, § 10G (b).

Sonja Farak, then a chemist at the Department of Public Health's

State Laboratory Institute in Amherst (Amherst drug lab), tested

the substances in the defendant's case on June 8, 2007, and

signed the certificates of drug analysis (drug certificates).1

Pursuant to a plea agreement, the defendant pleaded guilty on

April 13, 2009, to trafficking in cocaine (fourteen to twenty-

eight grams), and unlawful possession of ammunition.2




     1
       Sonja Farak was a chemist for the Department of Public
Health from July, 2003, until January 19, 2013. During the
first year of her employment, she worked at the William A.
Hinton State Laboratory Institute in the Jamaica Plain section
of Boston. After that, Farak worked at the Department of Public
Health's State Laboratory Institute in Amherst (Amherst drug
lab).
     2
       With respect to the trafficking charge, the   defendant was
sentenced to from five years to five years and one   day in State
prison. With respect to the ammunition charge, he    was sentenced
to one year in a house of correction, to be served   concurrently
with the sentence on the trafficking charge.
                                                                   3

     On April 1, 2013, a State grand jury indicted Farak on four

counts of tampering with evidence, G. L. c. 268, § 13E; four

counts of theft of a controlled substance (cocaine) from a

dispensary, G. L. c. 94C, § 37; and two counts of unlawful

possession of a class B substance (cocaine), G. L. c. 94C, § 34.

Approximately three weeks later, the defendant filed a motion to

withdraw his guilty pleas pursuant to Mass. R. Crim. P. 30 (b),

as appearing in 435 Mass. 1501 (2001).   He claimed that Farak

was a government agent by virtue of her role at the Amherst drug

lab, that her misconduct was widespread and egregious, and that

such misconduct antedated his guilty pleas.   As a consequence,

the defendant asserted that because his guilty pleas were based,

in part, on an assumption that the drug certificates were

truthful and accurate, his decision to plead guilty was not

knowing, voluntary, and intelligent.   The defendant further

claimed that Farak's misconduct constituted newly discovered

evidence that would have had a significant impact on his

decision to plead guilty and cast serious doubt on the justice

of his convictions.3   On October 30, 2013, a Superior Court judge



     3
       In an affidavit dated April 19, 2013, the defendant's
trial counsel stated that, at the time she advised her client to
plead guilty, she was not aware of Farak's misconduct. If she
had been aware of such misconduct prior to the defendant's
pleas, she would not have advised him to plead guilty. Instead,
she would have advised the defendant to either negotiate for a
better plea offer or go to trial.
                                                                    4

denied the defendant's motion.   Farak pleaded guilty to all ten

charges on January 6, 2014.

     The defendant appealed, and we granted his application for

direct appellate review.   The defendant now contends that the

judge abused his discretion by (1) failing to afford the

defendant the benefit of the conclusive presumption articulated

in Commonwealth v. Scott, 467 Mass. 336, 352-353 (2014), that

egregious misconduct by Farak occurred in the defendant's case;

(2) ignoring direct and circumstantial evidence of misconduct by

Farak that antedated the entry of the defendant's guilty pleas;

and (3) finding that the defendant would have pleaded guilty

notwithstanding Farak's misconduct.   The defendant also claims

that the judge erred by quashing a subpoena that had been issued

to Farak's spouse, Nikki Lee, where she was a necessary witness

for the defense.   For the reasons set forth below, we vacate the

order denying the defendant's motion to withdraw his guilty

pleas, and we conclude that, given the Commonwealth's failure to

thoroughly investigate the matter of Farak's misconduct at the

Amherst drug lab, the defendant is entitled to a measure of

relief, as will be described in detail.4   We remand the case for

further proceedings in accordance with this opinion.



     4
       We acknowledge the amicus briefs submitted by Rafael
Rodriguez and Deon Charles, defendants in two other Amherst drug
lab cases whose motions to withdraw their respective guilty
pleas were denied. See note 5, infra. Their appeals have been
                                                                     5

     1.   Background on the Amherst drug lab.5    The Amherst drug

lab began operation in 1987 with the primary function of

analyzing suspected controlled substances for law enforcement

agencies involved in the prosecution of criminal cases in

western Massachusetts.6    As of January, 2013, there were four

employees at the facility, and each one could access the

evidence safe by means of an electronic card or a key.       On

January 17, 2013, the evidence officer at the Amherst drug lab,

Sharon Salem, was attempting to match drug certificates with the

corresponding samples when she realized that she was missing the

samples in two cases.     Records reflected that Farak had

completed testing on those samples earlier in the month and had

confirmed that the substances were cocaine.      On January 18,


stayed by the Appeals Court pending our decision in the present
case.
     5
       In the fall of 2013, the judge in the present case
conducted an evidentiary hearing on postconviction motions filed
by fifteen defendants who claimed that alleged criminal conduct
by Farak rendered their guilty pleas to various drug charges
unknowing, unintelligent, and involuntary, and that this newly
discovered evidence cast doubt on the justice of their
convictions. The evidence presented at the hearing was limited
to (1) the timing and scope of Farak's alleged criminal conduct;
(2) the timing and scope of conduct underlying negative findings
in an October 10, 2012, quality assurance audit of the Amherst
drug lab by the State police (see note 11, infra); and (3) the
extent to which Farak's alleged criminal conduct and the audit
findings might relate to the testing of drug evidence in the
fifteen defendants' cases.
     6
       On July 1, 2012, the responsibility for oversight of the
Amherst drug lab was transferred from the Department of Public
Health to the State police.
                                                                    6

Salem reported the missing evidence to her supervisor, James

Hanchett, who searched Farak's work station and discovered,

among other items, a manila envelope containing the packaging

for the two missing samples, which had been cut open.    Testing

of the substances in the packaging was negative for cocaine,

contrary to Farak's earlier analysis.

       Hanchett immediately contacted the State police, who shut

down the Amherst drug lab and began an investigation.    They

discovered two additional case envelopes in a temporary storage

locker used by Farak, a location where evidence was not allowed

to be stored overnight.    Although each envelope was supposed to

contain suspected cocaine, neither did, and a search for those

substances was unsuccessful.    Investigators also interviewed

Farak's colleagues who said that, beginning in September, 2012,

they observed a change in Farak's behavior, including frequent

unexplained absences from her work station and a decrease in

productivity.

       On January 19, 2013, the State police forensic services

conducted an inventory of all drug evidence at the Amherst drug

lab.    Only the four above-described samples were missing.     A

similar inventory conducted approximately four months earlier

had not uncovered any missing samples.    Also on January 19, the

State police searched Farak's vehicle pursuant to a warrant and

seized, among other items, manila envelopes bearing case
                                                                   7

numbers, paperwork relating to the Amherst drug lab, a plastic

bag containing a white powdery substance and a brown tar-like

substance, a plastic bag containing assorted pills, and

photocopies of three newspaper articles about individuals who

had been investigated, charged, or sentenced for the illegal

possession or theft of controlled substances.7   Attached to one

of the articles was a handwritten note stating, "Thank [G]od I'm

not a law enforcement officer" (emphasis in original).

     Farak was arrested at her home that same day.   She was

charged by criminal complaint in the District Court with

unlawful possession of a class A substance (heroin), unlawful

possession of a class B substance (cocaine), and two counts of

tampering with evidence.   On January 25, 2013, the State police

searched a tote bag that had been seized from Farak's work

station pursuant to a warrant.   The bag contained a variety of

substances that could be used to dilute or replace cocaine

(soap, baking soda, soy candle flakes, and oven-baked clay),


     7
       One of the newspaper articles, dated March 29, 2011, had
been printed from a computer on September 20, 2011, and was a
story about the illegal possession of steroids by law
enforcement officers. A second newspaper article, dated
October 25, 2011, had been printed from a computer on
October 28, 2011, and was a story about a Pittsfield pharmacist
being sentenced to three years in prison for stealing OxyContin
from her workplace. The article mentioned that the pharmacist
had replaced the OxyContin with other medications. A third
newspaper article, dated December 2, 2011, had been printed from
a computer on December 6, 2011, and was a story about a former
San Francisco police department drug laboratory technician who
stole cocaine from her workplace.
                                                                   8

other items commonly used in the drug trade (plastic laboratory

dishes, waxed paper, and fragments of copper wire), and several

evidence bags that had been cut open.   The evidence bags bore

diverse dates from December 16, 2012, to January 6, 2013.

     On April 1, 2013, a State grand jury indicted Farak on four

counts of tampering with evidence at the Amherst drug lab, four

counts of stealing cocaine from that facility, and two counts of

unlawful possession of cocaine.   While proceedings were ongoing

in the Superior Court with respect to these charges, four

additional cases surfaced in which it seemed, based on

retesting, that Farak may have removed cocaine from samples that

were submitted to the Amherst drug lab for analysis between June

15 and October 10, 2012, and replaced at least some of the

cocaine with a counterfeit substance.   It is not clear from the

record why this particular evidence was selected for retesting.

Nonetheless, it does appear that no charges were brought against

Farak with respect to these four additional cases.   On January

6, 2014, Farak pleaded guilty to all ten charges.8


     8
       With respect to the first count of tampering with evidence
(Count I), Farak was sentenced to two and one-half years in a
house of correction, with eighteen months to serve, and the
balance suspended with probation for five years, with special
conditions. Farak was given the same sentence on the second and
third counts of tampering with evidence, as well as on three
counts of theft of a controlled substance, each sentence to run
concurrently with the sentence on Count I. With respect to each
of the two counts of unlawful possession of a class B substance,
Farak was sentenced to serve one year in a house of correction,
each sentence to run concurrently with the sentence on Count I.
                                                                      9

    2.     Factual and procedural history.   In the spring of 2007,

Springfield police Officer Thomas Nehmer discovered, through the

use of a confidential informant, that the defendant was selling

cocaine.    On May 4, 2007, based on information received from the

informant regarding the defendant's involvement in an upcoming

drug deal, the police established surveillance at the time and

place of the transaction.   When the defendant arrived as

predicted, he was secured by police and found to be in

possession of two cellular telephones, ninety-one dollars, and

what appeared to be approximately eight grams of cocaine.    He

was placed under arrest and transported to the police station.

Following a waiver of his Miranda rights, the defendant told

officers that in his bedroom at his residence were packaging

materials, scales, and approximately thirty grams of cocaine.

Officer Nehmer applied for and was granted a search warrant.

When officers searched the defendant's residence, they

discovered fifty-eight rounds of .22 caliber ammunition, scales,

cutting agents, and two bags containing substances that appeared

to be cocaine and weighed approximately forty-four grams.    The

substances were tested by Farak at the Amherst drug lab on




With respect to the fourth count of tampering with evidence and
the fourth count of theft of a controlled substance, Farak was
sentenced to five years' probation, to run concurrently with her
probation on the other charges.
                                                                  10

June 8, 2007.   According to the drug certificates that she

signed, each substance tested positive for cocaine.9

     On April 13, 2009, after engaging in a thorough colloquy

with the judge and before Farak's misconduct had become known,

the defendant pleaded guilty to trafficking in cocaine (fourteen

to twenty-eight grams), and unlawful possession of ammunition.

The bases for his subsequent motion to withdraw his guilty pleas

were twofold.   First, the alleged criminal conduct by Farak at

the Amherst drug lab rendered his guilty pleas unknowing,

unintelligent, and involuntary.   Second, such misconduct

constituted newly discovered evidence that cast real doubt on

the justice of his convictions.   The judge considered each

contention in turn.

     In deciding whether the defendant's pleas were knowing,

voluntary, and intelligent, the judge relied on the analysis

articulated in Ferrara v. United States, 456 F.3d 278, 290 (1st

Cir. 2006).10   He stated that a defendant seeking to set aside a

guilty plea as involuntary must show that (1) the government or

its agents committed some egregiously impermissible conduct that


     9
       According to the Commonwealth, the drugs seized from the
defendant have been destroyed.
     10
       At the time the judge ruled on the defendant's motion to
withdraw his guilty pleas, he did not have the benefit of our
decision in Commonwealth v. Scott, 467 Mass. 336 (2014), which
also relied on the analysis set forth in Ferrara v. United
States, 456 F.3d 278, 290 (1st Cir. 2006).
                                                                    11

antedated the entry of the plea, and (2) the misconduct was

material to the defendant's choice to plead guilty.   See id.

With regard to the first part of the inquiry, the judge

concluded that, given Farak's role at the Amherst drug lab, she

must be deemed to be an agent of the Commonwealth.    Next, the

judge considered whether Farak's alleged misconduct antedated

the defendant's guilty pleas on April 13, 2009.    The judge said

that, although there was "powerful evidence" that Farak had

engaged in egregiously impermissible conduct by stealing cocaine

and replacing it with other substances, he was not persuaded

that she was doing so at the time of the defendant's guilty

pleas.    Therefore, the defendant failed to establish that

Farak's misconduct antedated his guilty pleas.    Further, in the

judge's view, the negative findings made during an October,

2012, quality assurance audit of the Amherst drug lab were

disconcerting, but there was no evidence that these general

deficiencies had any bearing on the testing performed in the

defendant's case.11   As such, the findings of the audit did not


     11
       On October 10, 2012, the State police conducted a quality
assurance audit of the Amherst drug lab. It was a routine
matter in the sense that quality assurance audits are conducted
at all State police laboratories every year, but this facility
never had been audited. See note 6, supra. Among other
purposes, the audit was designed to determine what steps the
Amherst drug lab would have to take in order to meet
accreditation standards required by the American Society of
Crime Lab Directors/Laboratory Accreditation Board. The Amherst
drug lab had not been accredited since it began operation in
1987 and, in fact, all State police laboratories operated
                                                                  12

amount to the kind of egregiously impermissible government

conduct contemplated by the Ferrara case.

    The judge then considered the second part of the Ferrara

inquiry, namely whether Farak's misconduct would have been

material to the defendant's decision to plead guilty.     The judge

stated that there was no evidence that the test results in this

case were inaccurate, or that Farak was involved in any

misconduct at the time of the defendant's guilty pleas.

Moreover, he continued, there were good reasons for the

defendant to accept the plea agreement.   Given the strength of

the Commonwealth's case (including the defendant's own

incriminating statements), the significant benefit the defendant

received from the plea agreement, and the absence of any

without accreditation prior to 2002. The negative findings in
the October, 2012, audit of the Amherst drug lab included the
following: chain of custody with respect to evidence kept in
short-term overnight storage was not documented appropriately,
and evidence retained in such storage was not sealed properly;
evidence seals were initialed, but not dated, by the chemists;
variances between weights of substances on arrival and weights
at testing were not documented; and inventory discrepancies were
not verified. In addition, so-called "reagents" were not
regularly tested, and known drug standards were not verified on
a daily basis. The audit team recommended steps to remediate
each of these problems, and personnel at the Amherst drug lab
took measures to address the negative findings. Cathleen
Morrison, a member of the audit team and an author of the audit
report, testified at the evidentiary hearing, see note 5, supra,
that the audit did not raise any questions regarding the
reliability of the testing performed at the Amherst drug lab.
The judge concluded that, although the negative findings in the
audit "reflect[ed] a lax atmosphere in which theft of controlled
substances could go undetected for a period of time, the audit
did not reveal any unreliable testing."
                                                                  13

evidence that Farak's misconduct affected the drug testing in

the defendant's case, the judge concluded that Farak's

misconduct would not have been material to the defendant's

decision to plead guilty, even if such misconduct had antedated

the defendant's pleas.   The judge also found that the negative

audit of the Amherst drug lab failed to satisfy the threshold of

materiality required to invalidate the defendant's guilty pleas.

Accordingly, based on the totality of the circumstances, the

judge concluded that the defendant had failed to establish that

his guilty pleas were not knowingly, intelligently, and

voluntarily made.

    Finally, the judge considered whether Farak's misconduct at

the Amherst drug lab constituted newly discovered exculpatory

evidence that cast real doubt on the justice of the defendant's

convictions.   The judge first determined that there was no

evidence that the defendant or his attorney was aware of Farak's

misconduct or the negative audit, or that either reasonably

could have been discovered at the time of the defendant's pleas.

Therefore, the judge continued, the evidence of Farak's

misconduct, in particular, and the administrative problems at

the Amherst drug lab, in general, qualified as "newly

discovered."   However, for all of the reasons he already had

articulated, the judge stated that this newly discovered

evidence was "not sufficiently weighty, potent, or pertinent to
                                                                    14

the fundamental issues of this case to be worthy of

consideration at a new trial."

    3.    Standard of review.    A motion to withdraw a guilty plea

is treated as a motion for a new trial pursuant to Mass. R.

Crim. P. 30 (b).    Commonwealth v. Furr, 454 Mass. 101, 106

(2009).   "Under Mass. R. Crim. P. 30 (b), a judge may grant a

motion for a new trial any time it appears that justice may not

have been done.    A motion for a new trial is thus committed to

the sound discretion of the judge."     Scott, 467 Mass. at 344.

We review the allowance or denial of a motion to withdraw a

guilty plea to determine whether the judge abused that

discretion or committed a significant error of law.     Id.    We

accept the judge's findings of fact if they are supported by the

evidence, because the judge who heard the witnesses testify is

the "final arbiter [on] matters of credibility."     Id., quoting

Commonwealth v. Schand, 420 Mass. 783, 787 (1995).

    4.    Discussion.    Due process requires that a plea of guilty

be accepted only where "the contemporaneous record contains an

affirmative showing that the defendant's plea was intelligently

and voluntarily made."     Furr, 454 Mass. at 106, citing Boykin v.

Alabama, 395 U.S. 238 (1969), and Commonwealth v. Foster, 368

Mass. 100, 102 (1975).    "A guilty plea is intelligent if it is

tendered with knowledge of the elements of the charges against

the defendant and the procedural protections waived by entry of
                                                                    15

a guilty plea."   Scott, 467 Mass. at 345.    See Commonwealth v.

Duest, 30 Mass. App. Ct. 623, 630-631 (1991).     "A guilty plea is

voluntary so long as it is tendered free from coercion, duress,

or improper inducements."     Scott, supra.   Typically, a motion to

withdraw a guilty plea will allege a facial defect in the plea

procedures, but a guilty plea "also may be vacated as

involuntary because of external circumstances or information

that later comes to light."    Id., and cases cited.

    We begin by reviewing the framework for analyzing the

defendant's motion to withdraw his guilty pleas.     In Ferrara,

456 F.3d at 280, 284, 290-293, the United States Court of

Appeals for the First Circuit analyzed whether blatant

misconduct by the government, discovered more than ten years

after entry of the defendant's guilty plea, could render such

plea involuntary.   The prosecutor in Ferrara deliberately

manipulated a key witness, failed to disclose exculpatory

evidence, and affirmatively misrepresented the nature of the

witness's planned testimony.    Id. at 291-293.   The court

concluded that when a defendant seeks to vacate a guilty plea as

a result of underlying government misconduct, rather than a

defect in the plea procedures, the defendant must show both that

"egregiously impermissible conduct . . . by government agents

. . . antedated the entry of his plea," and that "the misconduct

influenced his decision to plead guilty or, put another way,
                                                                       16

that it was material to that choice."       Id. at 290.   Relying on

Ferrara, this court articulated in Scott, 467 Mass. at 346-358,

a two-prong framework for analyzing a defendant's motion to

withdraw his guilty plea under Mass. R. Crim. P. 30 (b) in a

case involving the misconduct of Annie Dookhan, a chemist at the

William A. Hinton State Laboratory Institute's forensic drug

laboratory (Hinton drug lab) from 2003 to 2012.      Under the first

prong of the analysis, a defendant must show egregious

misconduct by the government that preceded the entry of the

defendant's guilty plea and that occurred in the defendant's

case.   Id. at 347-354.   Under the second prong of the analysis,

a defendant must demonstrate a reasonable probability that he or

she would not have pleaded guilty had he or she known of the

government misconduct.    Id. at 354-358.

    We recognized in Scott that, given the breadth and duration

of Dookhan's malfeasance, it might be impossible for a defendant

to show the required nexus between the government misconduct and

the defendant's own case.   Scott, 467 Mass. at 351-352.

Dookhan's "insidious" misconduct, "which belie[d]

reconstruction, [was] a lapse of systemic magnitude in the

criminal justice system."   Id. at 352.     Consequently, we

established a special evidentiary rule whereby a defendant

seeking to vacate a guilty plea under rule 30 (b) as a result of

the revelation of Dookhan's misconduct, and proffering a drug
                                                                    17

certificate from the defendant's case signed by Dookhan on the

line labeled "Assistant Analyst," would be entitled to "a

conclusive presumption that egregious government misconduct

occurred in the defendant's case."    Id.   Application of this

conclusive presumption in a particular case meant that a

defendant's evidentiary burden to establish each element of the

first prong of the Ferrara-Scott framework was satisfied.     Id.

at 353-354.   We emphasized in Scott that this special

evidentiary rule is unique in that it is "a remedy dictated by

the particular circumstances surrounding Dookhan's misconduct as

a chemist at the Hinton drug lab 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."   Id.   Further, we stated that "[s]hould

the Ferrara analysis be applied in the case of a motion for a

new trial under Mass. R. Crim. P. 30 (b) that does not arise

from the investigation of Dookhan, the defendant will have the

burden to establish each element of the first prong of Ferrara,

and the adequacy of the defendant's showing will be committed to

the sound discretion of the motion judge" (emphasis added).        Id.

at 354.

    a.    Prong one of the Ferrara-Scott analysis:   egregious

misconduct by the government in the defendant's case.     In the

present appeal, the defendant contends that Farak's misconduct
                                                                     18

at the Amherst drug lab was egregious, and that Farak was a

government agent such that her misconduct is attributable to the

Commonwealth.   Moreover, in the defendant's view, Farak's

misconduct was systemic in magnitude.   As a consequence, the

defendant argues, he was entitled to the conclusive presumption

articulated in Scott, 467 Mass. at 352-353, and, therefore, he

was not required to prove that such misconduct occurred in his

own case.   The defendant asserts that even if this court does

not apply the conclusive presumption, it still should determine

that, because there was direct and circumstantial evidence

suggesting that Farak's misconduct antedated the entry of his

guilty pleas, misconduct must have occurred in his case.     Given

all of these circumstances, the defendant contends that the

discovery of Farak's egregious misconduct after he had tendered

his guilty pleas rendered those pleas unknowing, unintelligent,

and involuntary.   As such, the defendant continues, the judge

abused his discretion in denying the defendant's motion to

withdraw his guilty pleas.12   We agree with the defendant that


     12
       In Scott, the defendant argued that "relief [might] be
available to him under Brady v. Maryland, 373 U.S. 83, 87
(1963), as a result of the prosecution's failure to disclose the
potentially exculpatory evidence of Dookhan's misconduct to the
defendant prior to his guilty plea." Scott, 467 Mass. at 346
n.5. In the present case, the defendant has not raised such an
argument, presumably because evidence of misconduct by Farak had
not yet come to light at the time the defendant pleaded guilty
on April 13, 2009. As such, there was nothing for the
Commonwealth to disclose.
                                                                   19

Farak's misconduct was egregious and that it is attributable to

the Commonwealth.   However, based on the evidence of her

misconduct that has been uncovered thus far, we disagree with

the defendant that he is entitled to the conclusive presumption

articulated in Scott, or, alternatively, that he has shown that

Farak's malfeasance antedated the entry of his guilty pleas.

Nonetheless, given the absence of a thorough investigation into

the matter by the Commonwealth, and the cloud that overshadows

the integrity of drug analyses performed by Farak at the Amherst

drug lab, we conclude that the defendant is entitled to a

measure of relief, as will be described.    We turn to the

Ferrara-Scott framework.

    i.   Egregious misconduct.    On January 6, 2014, Farak

pleaded guilty to, among other offenses, four counts of

tampering with evidence at the Amherst drug lab and four counts

of stealing cocaine from that facility.    There is no dispute

between the parties that this constituted "egregious misconduct"

by Farak.   She was entrusted with analyzing purported drug

samples, signing drug certificates that identified and set forth

the precise weight of each sample, and testifying to the results

of her analyses.    By tampering with evidence, Farak cast serious

doubt on the integrity of this entire process.    Her misconduct

could render a defendant's guilty plea involuntary by wholly

undermining the evidentiary foundation of the Commonwealth's
                                                                    20

case.   We conclude that Farak's misconduct constitutes the type

of egregious misconduct that satisfies the first element of the

first prong of the Ferrara-Scott analysis.     See Scott, 467 Mass.

at 347-348.   See also Ferrara, 456 F.3d at 290-293.

    ii.     By the government.   The defendant contends that

because Farak was a government agent, her misconduct is

attributable to the Commonwealth.    In contrast, the Commonwealth

argues that Farak's misconduct, while egregious, was an

individual unlawful scheme and, as such, should not be

attributable to the Commonwealth.    We agree with the defendant's

position.

    In Scott, 467 Mass. at 348-350, we considered various

circumstances where actions by a range of government agents

might constitute misconduct "by the government" that could

render a defendant's guilty plea involuntary.    See, e.g., United

States v. Fisher, 711 F.3d 460, 467 (4th Cir. 2013) (law

enforcement officer's conduct in lying in search warrant

affidavit in defendant's case, regardless of prosecutor's lack

of actual knowledge of officer's wrongdoing, constituted

impermissible government conduct).    In the related context of a

prosecutor's duty to disclose exculpatory evidence to the

defense, we pointed out that, generally speaking, "the

prosecutor's duty does not extend beyond information held by

'agents of the prosecution team,'" Scott, supra at 349, quoting
                                                                     21

Commonwealth v. Thomas, 451 Mass. 451, 454 (2008), but that

"individuals other than prosecutors and police may be considered

agents of the prosecution team."   Scott, supra.    See

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

duty to disclose exculpatory evidence extends to information in

possession of chemist at State police crime laboratory who "has

participated in the investigation or evaluation of the case and

has reported to the prosecutor's office concerning the case");

Commonwealth v. Woodward, 427 Mass. 659, 679 (1998) (medical

examiner considered to be agent of Commonwealth).    We concluded

in Scott that Dookhan, in her role as a chemist at the Hinton

drug lab, was an agent of the Commonwealth whose misconduct was

attributable to the government for the limited purposes of the

Ferrara analysis.   Scott, 467 Mass. at 349-350.    Significantly,

it appeared from the record that Dookhan had engaged in

egregious misconduct "to further what she perceived to be the

mission of the Commonwealth" -- getting criminals off the

streets -- and not to further her own "individual unlawful

scheme."   Id. at 350, quoting Commonwealth v. Waters, 410 Mass.

224, 230 (1991).    Contrast Commonwealth v. Campiti, 41 Mass.

App. Ct. 43, 65-66 (1996) (defendant not entitled to new trial

where State police officer involved in investigation of

defendant embezzled money from district attorney's office to
                                                                    22

support gambling habit, but where such activity did not taint

voluminous evidence against defendant).

    Farak, like Dookhan, was an agent of the prosecution team,

given that, where she was the analyst for a purported drug

sample recovered from a defendant, she "participated in the

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

prosecutor's office concerning the case."     Scott, supra at 349,

quoting Martin, 427 Mass. at 824.   In addition, Farak was

"expected to testify as [an] expert witness[] regarding the

testing of samples in various criminal prosecutions."     Scott,

supra at 350.   Admittedly, it appears from the record that Farak

was tampering with evidence at the Amherst drug lab in order to

support her own cocaine habit.   Nonetheless, the effect of her

misconduct was to raise serious questions about the integrity of

her work on behalf of the Commonwealth.     With respect to at

least eight known cases, it seems apparent that Farak's actions

tainted the drug analysis process which, in turn, raises

concerns about the reliability of her analyses in other cases

where she was the assistant analyst.   Such malfeasance goes

right to the heart of the Commonwealth's ability to convict a

defendant in a drug case and, therefore, is directly related to

"the Commonwealth's interest in law enforcement."     Waters, 410

Mass. at 230.   Farak's misconduct was not merely an "individual

unlawful scheme," id., and, as such, is attributable to the
                                                                    23

Commonwealth.   The defendant has satisfied the second element of

the first prong of the Ferrara-Scott analysis.   See Scott, 467

Mass. at 348-350.   See also Ferrara, 456 F.3d at 290-293.

    iii.   In the defendant's case.   Finally, the third element

of the first prong of the Ferrara-Scott analysis requires the

defendant to show that egregious misconduct by Farak antedated

the entry of his guilty pleas and occurred in his own case.    See

Scott, supra at 350-354.   See also Ferrara, supra at 290.    The

defendant asserts that he was entitled to the conclusive

presumption articulated in Scott, supra at 352-353, and,

therefore, he was not required to prove that Farak's misconduct

occurred in his case.   Further, the defendant continues, even if

this court does not apply the conclusive presumption, it still

should determine that, because there was both direct and

circumstantial evidence suggesting that Farak's misconduct

antedated the entry of his guilty pleas, misconduct must have

occurred in his case.   We conclude that the evidence on which

the defendant relies is not sufficient, at this juncture, to

establish either that Farak's misconduct constituted a systemic

problem warranting application of the conclusive presumption, or

that her misconduct antedated the entry of the defendant's

guilty pleas.

    In Scott, we determined that "furnishing a drug certificate

signed by Dookhan as a primary or secondary chemist in the
                                                                  24

defendant's case [was] sufficient to establish the requisite

nexus between the defendant's case and Dookhan's misconduct."

Scott, 467 Mass. at 354.    Our bases for establishing a

conclusive presumption that "egregious government misconduct

occurred in the defendant's case" were our reasonable certainty

that Dookhan's misconduct "touched a great number of cases," and

that it was a "lapse of systemic magnitude in the criminal

justice system" that "belie[d] reconstruction."    Id. at 352.   In

the present case, no such reasonable certainty exists.

     Unlike the circumstances in Scott where the State police

detective unit of the Attorney General's office conducted a

broad formal investigation into Dookhan and her practices at the

Hinton drug lab, see Scott, 467 Mass. at 339, the Commonwealth's

investigation into the timing and scope of Farak's misconduct

has been cursory at best.    Nonetheless, based on the record

before us, only eight cases thus far have surfaced in which it

appears that Farak tampered with evidence at the Amherst drug

lab, beginning perhaps in the summer of 201213 and continuing




     13
       The motion judge was not persuaded that it was reasonable
to infer from Farak's possession of the newspaper articles that
were printed in the fall of 2011, see note 7, supra, that she
was stealing controlled substances at that time. We conclude
that the judge did not abuse his discretion in making this
determination.
                                                                     25

until January, 2013.14   It goes without saying that eight cases

are eight cases too many.    However, the scope of Farak's

misconduct does not appear to be, at this point in time,

comparable to the enormity of Dookhan's misconduct at the Hinton

drug lab.    Among other wrongdoing, Dookhan admitted to "dry

labbing," contaminating drug samples (including converting

negative samples into positive samples), removing drug samples

from the lab's evidence locker in violation of protocol, failing

to verify the proper functioning of lab equipment, and

falsifying reports to hide her misconduct.    See Scott, supra at

339-341.    In addition, Dookhan "acknowledged to investigators

that she [might] not be able to identify those cases in which

she tested the samples properly and those in which she did not,"

id. at 339, rendering it virtually impossible to ascertain the

full extent of Dookhan's misconduct during her tenure at the

Hinton drug lab, which spanned approximately ten years.      There

is no indication on the record before us that Farak's misconduct

presents a comparable situation.    Therefore, the defendant is

not entitled to the benefit of the conclusive presumption

articulated in Scott, supra at 352-353, that egregious

misconduct by Farak occurred in his case.



     14
       As far as we can tell, Farak has not provided any details
concerning the timing and scope of her misconduct, apart from
pleading guilty to the ten indictments.
                                                                      26

       That said, the systemic nature of Dookhan's misconduct only

came to light following a thorough investigation of the Hinton

drug lab by the State police detective unit of the Attorney

General's office.    See Scott, 467 Mass. at 339-341.   As far as

we are able to discern, no such investigation of the Amherst

drug lab has occurred.    In another case decided today concerning

Farak's misconduct at that facility, Commonwealth v. Ware,

ante      ,      (2015), we stated that "the Commonwealth ha[s] a

duty to conduct a thorough investigation to determine the nature

and extent of [Farak's] misconduct, and its effect both on

pending cases and on cases in which defendants already had been

convicted of crimes involving controlled substances that Farak

had analyzed."    The Commonwealth's obligation to conduct an

investigation is premised on a prosecutor's "duty to learn of

and disclose to a defendant any exculpatory evidence that is

'held by agents of the prosecution team,'" who include chemists

working in State drug laboratories.     Id., quoting Commonwealth

v. Beal, 429 Mass. 530, 532 (1999).    It is incumbent on the

Commonwealth to perform this duty in a timely fashion.    The

burden of ascertaining whether Farak's misconduct at the Amherst

drug lab has created a problem of systemic proportions is not

one that should be shouldered by defendants in drug cases.      See

generally Scott, supra at 353.     At the same time, given what we

know, we have no basis for concluding in the present case that
                                                                   27

Farak's misconduct is a "lapse of systemic magnitude in the

criminal justice system."    Id. at 352.

    In a related vein, when considering the nexus between the

government misconduct and the defendant's case, we agree with

the motion judge that, although there is compelling evidence

that Farak was stealing cocaine and replacing it with

counterfeit substances, the defendant has not shown that Farak's

misconduct antedated the entry of his guilty pleas and,

therefore, must have occurred in his case.    Farak analyzed the

drugs in the defendant's case on June 8, 2007.    The defendant

pleaded guilty to trafficking in cocaine (fourteen to twenty-

eight grams) and unlawful possession of ammunition on April 13,

2009.   Farak was arrested on January 19, 2013, for misconduct

that was alleged to have occurred the previous day.    The judge

stated that powerful circumstantial evidence suggested that this

was not the first time that Farak had tampered with drug samples

at the Amherst drug lab.    The judge pointed out that the

retesting of a small number of drug samples that originally had

been analyzed by Farak indicated that she was tampering with

evidence during the summer of 2012.    Moreover, during the fall

of 2012, Farak's coworkers began to observe a change in her

behavior, including frequent unexplained absences from her work

station and a decrease in productivity.    From these facts and

all of the physical evidence seized in connection with the
                                                                    28

criminal investigation of Farak, the judge concluded that

Farak's misconduct postdated the defendant's guilty pleas by

almost three years.

    The defendant contends that the judge abused his discretion

by not considering "strong circumstantial evidence of

malfeasance" by Farak dating back to the start of her tenure as

an analyst, suggesting a prolonged period of wrongdoing.      The

defendant posits that Farak must have engaged in misconduct

while she was working at the Hinton drug lab from the summer of

2003 until the summer of 2004, see note 1, supra, because her

high volume of drug testing rivaled that of Dookhan, who

admitted to "dry labbing."   The defendant has offered no

supporting evidence to substantiate this claim, and, in our

view, it is wholly speculative.   With respect to Farak's work at

the Amherst drug lab, her supervisor testified at the

evidentiary hearing, see note 5, supra, that Farak's

productivity was comparable to that of her colleague in the lab.

The defendant also claims that there was evidence that Farak

used cocaine in 2000.   Even if that were true, it does not

support an inference that Farak must have been tampering with

evidence in the Amherst drug lab prior to April 13, 2009.      We

conclude that the judge did not abuse his discretion in

determining that the defendant failed to show that egregious
                                                                 29

misconduct by Farak antedated the entry of his guilty pleas and,

therefore, must have occurred in his case.15

     Based on the Ferrara-Scott framework for reviewing a

defendant's motion to withdraw his guilty pleas, the defendant

here has not satisfied his burden of establishing each element

of the first prong of the analysis.   That said, it is clear from

the record that Farak engaged in egregious misconduct at the

Amherst drug lab, and that any deficiencies in the evidence as


     15
       The defendant also directs our attention to other
purported evidence of likely tampering that, in his view,
demonstrates that Farak was engaged in misconduct at the Amherst
drug lab long before the summer of 2012. In the so-called Finch
and Espinosa cases, a Springfield police detective on March 17,
2012, submitted suspected Oxycodone pills to the Amherst drug
lab for testing, but, after analysis, Farak concluded that the
pills did not contain any controlled substances. In
Commonwealth vs. Berube, Hampden Super. Ct., No. 2011-00355
(Oct. 30, 2013), a Springfield police officer testified that not
all of the controlled substances presented at the trial were in
the same condition as when the officer had seized them. Farak
analyzed the substances in that case on May 12, 2011.
Similarly, in Commonwealth vs. Carter, Hampden Super. Ct., No.
2010-00115 (Nov. 15, 2013), the evidence presented at the trial
(whitish pills) appeared to be different from the evidence that
was seized by the police (blue pills). Farak analyzed the
substances in that case on December 17, 2009. Finally,
photocopies of three newspaper articles about individuals who
had been investigated, charged, or sentenced for the illegal
possession or theft of controlled substances had been printed
from a computer in the fall of 2011 and were found in Farak's
vehicle. See note 7, supra. Farak tested the substances in the
defendant's case on June 8, 2007. Given that the defendant
pleaded guilty on April 13, 2009, and that all of this purported
evidence relates to activities that occurred thereafter, it does
not support the defendant's contention that Farak's misconduct
antedated the entry of his guilty pleas, which is the relevant
inquiry under the Ferrara-Scott framework. See Scott, 467 Mass.
at 350-354. See also Ferrara, 456 F.3d at 290.
                                                                  30

to the scope and timing of her misconduct are attributable to

the Commonwealth in light of its failure to conduct a thorough

investigation of the matter.   Therefore, "it is incumbent upon

us to exercise our superintendence power to fashion a workable

approach" for giving defendants whose evidence samples were

analyzed by Farak at the Amherst drug lab an opportunity to

discover whether, in fact, their cases were affected by her

misconduct.   Scott, 467 Mass. at 352.   Clearly, the scope of

Farak's misconduct was wider than the ten charges to which she

pleaded guilty, given that at least four additional cases have

surfaced in which it appears that she tampered with evidence,

but with respect to which no charges were filed.

    In the absence of a thorough investigation by the

Commonwealth into Farak's misconduct, we conclude that the

following procedures should be implemented.   In cases where a

defendant seeks to vacate a guilty plea under Mass. R. Crim. P.

30 (b) as a result of the revelation of Farak's misconduct at

the Amherst drug lab, where the defendant proffers a drug

certificate from the defendant's case signed by Farak on the

line labeled "Assistant Analyst," and where the drug samples

have not yet been destroyed, the defendant is entitled to retest

those samples.   Drug samples that are part of a defendant's case

are "tangible objects" subject to mandatory discovery under

Mass. R. Crim. P. 14 (a) (1) (A) (vii), as amended, 442 Mass.
                                                                   31

1518 (2004).    See Commonwealth v. Williams, 456 Mass. 857, 870-

871 (2010) ("The Commonwealth's responsibility to provide

discovery to the defendant extends to material in its

possession, custody, or control, and includes information in the

possession of persons who have participated in the investigation

or evaluation of the case and who report to the prosecutor's

office concerning the case").    Cf. Commonwealth v. Mitchell, 444

Mass. 786, 795 (2005) (defendant has "unquestioned right, under

the Sixth Amendment to the United States Constitution and art.

12 of the Massachusetts Declaration of Rights, to obtain

relevant evidence that bears on the question of his guilt or

innocence or which otherwise will help his defense").    By such

retesting, a defendant can ascertain definitively whether Farak

tampered with the drug samples that were used to convict,

thereby establishing the requisite "nexus between the government

misconduct and the defendant's own case."16   Scott, 467 Mass. at

351.

       More problematic are those cases, like the present one,

where a defendant seeks to vacate a guilty plea under rule

30 (b) as a result of the revelation of Farak's misconduct, but

the defendant's drug samples have been destroyed.    See note 9,

       16
       General Laws c. 94C, § 47A, requires the Commonwealth to
obtain a court order each and every time it wishes to destroy
narcotics evidence. Trial judges should be very cautious in
allowing motions to destroy such evidence where the narcotics
have been analyzed at the Amherst drug lab.
                                                                   32

supra.   It is imperative that the Commonwealth thoroughly

investigate the timing and scope of Farak's misconduct at the

Amherst drug lab in order to remove the cloud that has been cast

over the integrity of the work performed at that facility, which

has serious implications for the entire criminal justice system.

Within one month of the issuance of this opinion, the

Commonwealth shall notify the judge below whether it intends to

undertake such an investigation.   If so, the investigation shall

begin promptly and shall be completed in an expeditious manner.

    As just stated, in our view, a thorough and timely

investigation would be the appropriate course to follow in the

circumstances.   In the absence of such an investigation,

however, and where an individual defendant's drug samples have

been destroyed, the judge, among other options, may entertain

discovery motions to retest randomly selected drug samples that

were tested by Farak and are still in existence in an effort to

determine whether evidence of tampering can be identified and to

establish the time frame of Farak's misconduct.   The results of

the Commonwealth's investigation, or the evidence that can be

gleaned from retesting, will dictate how the judge shall

proceed, and we leave that matter to the judge's discretion.

    We reiterate that under the first prong of the Ferrara-

Scott analysis, a defendant must show egregious misconduct by

the government that preceded the entry of the defendant's guilty
                                                                      33

pleas, and occurred in the defendant's case.    See Scott, 467

Mass. at 347-354.    See also Ferrara, 456 F.3d at 290.   In the

absence of evidence suggesting a problem of systemic magnitude

at the Amherst drug lab, but nonetheless indicating a serious

problem of undefined proportions, we afford the defendant here,

and others in a similar position, the opportunity to show,

through the retesting of drug samples, that Farak's misconduct

preceded the entry of his guilty pleas and occurred in his own

case.    Satisfaction of the first prong of the Ferrara-Scott

analysis is not, however, the end of the judge's inquiry

regarding whether to allow the defendant's motion to withdraw

his guilty pleas under Mass. R. Crim. P. 30 (b).     We turn now to

the second prong of the Ferrara-Scott analysis.

    b.    Prong two of the Ferrara-Scott analysis:    material

influence on the defendant's decision to plead guilty.     The

defendant contends that the judge erred in determining that,

even if Farak's misconduct had antedated the defendant's guilty

pleas, he still would have entered into the plea agreement.      In

the defendant's view, the judge wholly minimized the scope of

Farak's misconduct and, as a consequence, improperly assessed

its impact on the defendant's decision whether to plead guilty

or go to trial.     The Commonwealth acknowledges that the judge

denied the defendant's motion to withdraw his guilty pleas in

significant part because there was no evidence that the drug
                                                                  34

analyses in the defendant's case were inaccurate, or that Farak

was involved in misconduct at the time the defendant pleaded

guilty.   Notwithstanding evidence of misconduct by Farak, the

Commonwealth contends that there were good reasons for the

defendant to accept the plea agreement, including the strength

of the Commonwealth's case (including the defendant's own

incriminating statements), and the significant concessions made

by the Commonwealth regarding the charges and defendant's

sentence.

    In Scott, 467 Mass. at 354, this court pointed out that

satisfaction of the first prong of the Ferrara analysis did not

"relieve the defendant of his burden under the second Ferrara

prong to particularize Dookhan's misconduct to his decision to

tender a guilty plea."   See Commonwealth v. Chatman, 466 Mass.

327, 333 (2013) ("The defendant has the burden of proving facts

upon which he relies in support of his motion for a new trial");

Commonwealth v. Lewin, 405 Mass. 566, 584-585 (1989) (charges

against defendant need not be dismissed where police misconduct

was egregious but not prejudicial to fair trial).   The same

principle is applicable here with respect to Farak's misconduct.

"[E]vidence of the circumstances surrounding [a] defendant's

decision to tender a guilty plea should be well within the

defendant's reach."   Scott, supra at 354 n.11.   Accordingly,

under the second prong of the Ferrara-Scott framework, "the
                                                                   35

defendant must demonstrate a reasonable probability that he

would not have pleaded guilty had he known of [Farak's]

misconduct."    Scott, supra at 354-355.    See Ferrara, 456 F.3d at

290, 294.    This court identified in Scott a number of factors

that might be relevant to a defendant's showing under this

second prong of analysis.    See Scott, supra at 355-356.    We

emphasized in that case that "the full context of the

defendant's decision to enter a plea agreement will dictate the

assessment of his claim that knowledge of Dookhan's misconduct

would have influenced the defendant's decision to plead guilty."

Id. at 357.    See Ferrara, supra at 294.   Here, the same analysis

is applicable.

       We recognize that the motion judge considered whether the

defendant would have pleaded guilty even if Farak's misconduct

had antedated his guilty pleas.    However, the judge did so

without the benefit of our opinion in Scott, and without our

assessment of the potential implications of the Commonwealth's

cursory investigation of Farak's misconduct at the Amherst drug

lab.    In significant part, the judge determined that Farak's

misconduct would not have materially influenced the defendant's

decision to plead guilty because there was no evidence that the

drug analyses in the defendant's case were inaccurate, or that

Farak was tampering with evidence at the time the defendant

tendered his guilty pleas.    Given the absence of a thorough
                                                                  36

investigation by the Commonwealth into Farak's misconduct, we

cannot ascertain whether the foundation for the judge's

resolution of this issue is solid.     Therefore, following his

resolution of the first prong of the Ferrara-Scott analysis, the

judge should reconsider the second prong of that analysis "to

determine whether, in the totality of the circumstances, the

defendant can demonstrate a reasonable probability that had he

known of [Farak's] misconduct, he would not have [pleaded

guilty] and would have insisted on taking his chances at trial."

Scott, 467 Mass. at 358.

    c.   Subpoena to establish scope and timing of Farak's

misconduct.    In an effort to develop the facts necessary to

establish the timing and scope of Farak's misconduct, the

defendant subpoenaed Farak's spouse, Nikki Lee, to testify at

the evidentiary hearing.     See note 5, supra.   The defendant

wanted to show that Farak had a history of cocaine use dating

back to 2000, and he sought to question Lee about Farak's drug

use before and during her employment at the Amherst drug lab.

Lee's testimony, in the defendant's view, would be highly

probative of when Farak became motivated to tamper with

evidence.     In response, Lee filed a notice of her intent to

invoke her privilege against self-incrimination under the Fifth

Amendment to the United States Constitution and art. 12 of the

Massachusetts Declaration of Rights, as well as spousal
                                                                   37

privilege under G. L. c. 233, § 20, Second.17   Construing Lee's

notice of her intent to invoke certain privileges as a motion to

quash the subpoena, the judge allowed the motion on the basis of

spousal privilege.

     On appeal, the defendant contends that the judge erred in

quashing the subpoena because the evidentiary hearing was not a

criminal proceeding against Farak and, therefore, the spousal

privilege was inapplicable.   The propriety of asserting a

testimonial privilege is a matter of statutory interpretation,

presenting a pure question of law that is subject to de novo

review.   See Matter of a Grand Jury Subpoena, 447 Mass. 88, 90

(2006).   See also Bridgewater State Univ. Found. v. Assessors of

Bridgewater, 463 Mass. 154, 156 (2012).   Based on our review, we

agree with the defendant that the spousal privilege was not

applicable in the circumstances of this case.   However, we

affirm the judge's decision on other grounds.   See Commonwealth

     17
       In her notice of intent to invoke certain privileges,
Nikki Lee also asked that she be excused from testifying at the
evidentiary hearing because, among other reasons, her sworn
testimony before the State grand jury investigating Farak's
misconduct at the Amherst drug lab already had been provided to
the defendant. Lee testified before the grand jury that she had
tried cocaine, and that she had observed Farak using cocaine in
2000, although not since that time. We note that the spousal
privilege set forth in G. L. c. 233, § 20, Second, cannot be
invoked in proceedings before a grand jury. See Matter of a
Grand Jury Subpoena, 447 Mass. 88, 99 (2006). A spouse who
testifies before a grand jury will not be deemed to have waived
the spousal privilege at a later proceeding because "if there is
no privilege not to testify before a grand jury, then no
privilege has been waived by giving such testimony." Id. at 98.
                                                                       38

v. Va Meng Joe, 425 Mass. 99, 102 (1997) ("An appellate court is

free to affirm a ruling on grounds different from those relied

on by the motion judge if the correct or preferred basis for

affirmance is supported by the record and the findings").

    General Laws c. 233, § 20, Second, provides (with certain

exceptions not relevant here):    "[N]either husband nor wife

shall be compelled to testify in the trial of an indictment,

complaint or other criminal proceeding against the other."       See

Mass. G. Evid. § 504(a) (2014).     "The purpose of the spousal

privilege is to protect the relationship of marriage from the

potential harm of one spouse giving adverse testimony against

the other."     Commonwealth v. Szerlong, 457 Mass. 858, 869

(2010), cert. denied, 131 S. Ct. 1494 (2011).    See Matter of a

Grand Jury Subpoena, 447 Mass. at 96.     Because "[t]estimonial

privileges 'are exceptions to the general duty imposed on all

people to testify,'" they "must be strictly construed."        Three

Juveniles v. Commonwealth, 390 Mass. 357, 359 (1983), cert.

denied sub nom. Keefe v. Massachusetts, 465 U.S. 1068 (1984),

quoting Commonwealth v. Corsetti, 387 Mass. 1, 5 (1982).       See

Matter of a Grand Jury Subpoena, supra at 90.

    When considering the meaning of a testimonial privilege,

"we look first and foremost to the language of the statute as a

whole."   Id.   Generally speaking, the spousal privilege applies

to testimony that would be given by one spouse in a criminal
                                                                     39

trial against the other spouse.18    See id. at 90-93.   Here, Lee

would not be testifying at a criminal trial against Farak.

Rather, the defendant sought her testimony at an evidentiary

hearing pertaining to postconviction motions filed by fifteen

defendants who claimed that alleged criminal conduct by Farak

rendered their guilty pleas to various drug charges unknowing,

unintelligent, and involuntary.     See note 5, supra.   Lee's

testimony at such a proceeding cannot be barred by invocation of

the spousal privilege under G. L. c. 233, § 20, Second.

Accordingly, the judge erred in quashing the defendant's

subpoena on this basis.

     That said, based on our review of the record, the judge

properly could have quashed the defendant's subpoena on the

basis of Lee's invocation of her privilege against self-

incrimination.19   "The proscription of the Fifth Amendment that



     18
       In Matter of a Grand Jury Subpoena, 447 Mass. at 99, this
court did not decide "whether, or to what extent, the spousal
privilege may be invoked in pretrial (or posttrial)
proceedings." Given that the evidentiary hearing at issue in
the present case was not a pretrial proceeding against Farak, we
do not consider the scope of the spousal privilege beyond the
plain language of the statute, which resolves the matter at
hand.
     19
       Lee's testimony before the grand jury did not constitute
a waiver of her privilege against self-incrimination with regard
to the evidentiary hearing. "The waiver [of a testimonial
privilege], once made, waives the privilege only with respect to
the same proceeding; the witness may once again invoke the
privilege in any subsequent proceeding." Commonwealth v. King,
436 Mass. 252, 258 n.6 (2002). See generally Commonwealth v.
                                                                   40

'[n]o person . . . shall be compelled in any criminal case to be

a witness against himself' may be invoked whenever a witness

reasonably believes that the testimony could be used in a

criminal prosecution or could lead to other evidence that might

be so used."   Pixley v. Commonwealth, 453 Mass. 827, 832 (2009),

citing Kastigar v. United States, 406 U.S. 441, 444-445 (1972).

See Commonwealth v. Baker, 348 Mass. 60, 62-63 (1964).   Because

the privilege against self-incrimination is a "fundamental

principle" of our judicial system, it "is to be construed

liberally in favor of" the person claiming it.   Commonwealth v.

Borans, 388 Mass. 453, 455 (1983).   "A witness may refuse to

testify unless it is 'perfectly clear, from a careful

consideration of all the circumstances in the case, that the

witness is mistaken, and that the answer[s] cannot possibly have

such tendency' to incriminate (emphasis in original)."

Commonwealth v. Funches, 379 Mass. 283, 289 (1979), quoting

Hoffman v. United States, 341 U.S. 479, 488 (1951).

    By subpoenaing Lee, the defendant sought to elicit

testimony at the evidentiary hearing regarding Farak's cocaine

use before and during her employment at the Amherst drug lab.

During her testimony before the grand jury, Lee stated that she

herself had tried cocaine, that she had observed Farak using


Martin, 423 Mass. 496, 500-501 (1996) (discussing so-called
"waiver by testimony" rule).
                                                                   41

cocaine in 2000, and that she had marijuana in her house when

police officers arrived to search the premises as part of their

investigation of Farak.20   To the extent that Lee testified about

her own drug possession in relation to that of Farak, it is not

"perfectly clear" that such testimony could not possibly have

the tendency to incriminate Lee and subject her to criminal

prosecution.   Therefore, Lee's invocation of her privilege

against self-incrimination would have been a proper basis for

the judge to quash the defendant's subpoena.

     5.   Conclusion.   The order denying the defendant's motion

to withdraw his guilty pleas pursuant to Mass. R. Crim. P.

30 (b) is vacated, and we remand this case for further

proceedings in accordance with this opinion.

                                    So ordered.




     20
       The enactment of G. L. c. 94C, § 32L, inserted by St.
2008, c. 387, § 2, decriminalized only the possession of one
ounce or less of marijuana. A defendant still may be criminally
charged with possession of more than one ounce of marijuana.
See G. L. c. 94C, § 32L, third par.; Commonwealth v. Jackson,
464 Mass. 758, 762 (2013). Similarly, a defendant may be
criminally charged with possession with intent to distribute
marijuana, in violation of G. L. c. 94C, § 32C (a), even where
the amount of marijuana possessed is one ounce or less. See
Commonwealth v. Keefner, 461 Mass. 507, 508 (2012).
