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12-P-1215                                            Appeals Court

                COMMONWEALTH   vs.   JUSTIN C. GASTON.


                            No. 12-P-1215.

            Suffolk.      May 7, 2014. - October 31, 2014.

               Present:   Cypher, Kafker, & Hanlon, JJ.



Controlled Substances. Firearms. Constitutional Law, Conduct
     of government agents. Due Process of Law, Disclosure of
     evidence, Conduct of prosecutor. Practice, Criminal, New
     trial, Disclosure of evidence, Conduct of government
     agents, Conduct of prosecutor. Evidence, Disclosure of
     evidence, Firearm, Certificate of drug analysis.


     Complaints received and sworn to in the Dorchester Division
of the Boston Municipal Court Department on June 25 and July 3,
2008.

     After transfer to the Central Division of the Boston
Municipal Court Department, the cases were tried before Mark H.
Summerville, J., and a motion for a new trial was heard by
Eleanor C. Sinnott, J.


     William M. White, Jr., for the defendant.
     Vincent J. DeMore, Assistant District Attorney, for the
Commonwealth.


    CYPHER, J.     The defendant, Justin Gaston, appeals from the

denial of a motion for new trial and from his convictions by a
                                                                     2


jury on two counts of carrying a firearm without a license,

G. L. c. 269, § 10(a); one count of unlawful possession of

ammunition, G. L. c. 269, § 10(h); one count of possession of a

class B substance with the intent to distribute ("crack"

cocaine), G. L. c. 94C, § 32A; and one count of unlawful

possession of a loaded firearm charged in a separate complaint,

G. L. c. 269, § 10(n).1,2   The defendant argues that the evidence

was insufficient to support the charge of possession with intent

to distribute and the firearms and ammunition charges.       The

defendant also argues that his motion for new trial, which was

based on a claim of newly discovered evidence and prosecutorial

nondisclosure regarding problems in the William A. Hinton State

Laboratory Institute (Hinton lab) involving chemist Annie

Dookhan, should have been allowed.    We conclude that the

evidence was sufficient for a rational trier of fact to find the

defendant guilty beyond a reasonable doubt on all of the charges

but that the motion for new trial should have been allowed as to

the drug charge.



     1
       We note that the defendant incorrectly identified the
loaded firearm charge in his brief as simple possession and the
Commonwealth incorrectly identified the counts on which the
defendant was convicted.
     2
       The defendant's direct appeal does not appear to have been
consolidated with his appeal from the denial of the motion for
new trial, but because the parties have addressed both appeals
in a single brief, we will respond in a single decision.
                                                                    3


     Facts.    Police officers in the Boston drug control unit

obtained a search warrant for an apartment in a six-family

building located in Dorchester.    They executed the warrant on

June 18, 2008, and initially tried to gain entry by knocking

loudly on the apartment door and announcing their presence.       The

police heard the sound of people "scurrying" inside the

apartment, but no one answered the door.    Using a battering ram,

the police struck the door eight or nine times until it finally

gave way.

     Upon gaining entry, the defendant fled over a balcony,

dropped to the ground and ran.    The defendant, a six-foot,

three-inch man weighing about 210 pounds, was readily

distinguishable from a second male suspect, who was about five

feet tall, and who was also running from the rear of the

building about ten feet away from the defendant.3   The defendant

attempted to jump over a fence but became entangled and fell.

To free himself, the defendant pulled off a headphone, the wire

of which had been hooked on the fence, and continued to run.      He

was apprehended by one of the officers who were chasing him.

     The police retraced the defendant's path and located a bag

containing what appeared to be ten rocks of crack cocaine

individually packaged in small plastic bags and the headphones



     3
         The second suspect was not apprehended.
                                                                   4


the defendant had been wearing when he became hooked on the

fence.

    The apartment where the search warrant was executed

consisted of five rooms, including a living room, two bedrooms,

and a kitchen.   Police located Joel Moore in the smaller

bedroom, which contained a day bed; it was in disarray with

clothes scattered all over and piled on the bed.   The room also

contained a bureau, on top of which was a black backpack.     An

officer unzipped the backpack and saw a handle and trigger guard

of what was later identified as a Taurus nine millimeter

semiautomatic pistol (Taurus pistol).   The officer also found

two pieces of mail from the Social Security Administration

addressed to the defendant at a different address in Dorchester,

a letter addressed to Eddie Gaston, a box of plastic sandwich

bags, a loaded High Point .380 caliber semiautomatic pistol

(High Point pistol), a single loose round of ammunition, and

assorted items of very large male clothing.   The officer also

found a scale with residue on it, a mirror, and a razor blade in

that bedroom.

    In the second, larger bedroom, another officer found one

live round of .380 ammunition and a firearm barrel cleaning rod

in the top drawer of a bureau.   He also recovered mail, a money

order, and identification in the name of Cedric Motin, the

apartment lessee; $151 in United States currency; and a spent
                                                                   5


shell casing.    The bedroom also contained a bed and a closet

with clothing.    Motin, who is about five-feet, six-inches tall

and weighs about 140 pounds, returned to the apartment during

execution of the warrant and spoke to the police.

    The Taurus pistol, the High Point pistol, both magazines,

and all of the ammunition were examined by the police for

fingerprints.    Five latent prints were recovered from those

items.    Three prints were recovered from the Taurus pistol but

were of insufficient quality to compare them to anyone else's

prints.    Two latent prints were recovered from the magazine of

the Taurus pistol, and one of those prints was of sufficient

quality to exclude the defendant and match the print to an

individual named Dashawn Hinton.

    Discussion.     1.   Motion for new trial.   The defendant

argued in his motion for new trial that his inability to access

Dookhan's pervasive and egregious misconduct until after his

trial and the prosecutor's failure to disclose the misconduct

prevented him from challenging her role as the confirmatory

chemist.    The motion judge, who was not the trial judge,

reasoned that because Dookhan was merely the confirmatory

chemist there was no substantial risk that the jury would have

reached a different conclusion had they been made aware of her

misconduct because the primary chemist had independently tested

the same sample and given her opinion at trial that the
                                                                   6


substance was cocaine.   The defendant appeals claiming, in

essence, that his motion for new trial should have been allowed

on the common-law ground of newly discovered evidence and the

constitutional claim of prosecutorial nondisclosure.    See

Commonwealth v. Scott, 467 Mass. 336, 359 (2014).

    As is often repeated, we review an appeal from the "denial

of a motion for new trial 'to determine whether there has been a

significant error of law or other abuse of discretion.'"

Commonwealth v. Rodriguez, 467 Mass. 1002, 1004 (2014), quoting

from Commonwealth v. Robideau, 464 Mass. 699, 701-702 (2013).

"Where, as here, a judge hearing a motion for new trial was not

the trial judge, we regard ourselves in as good a position as

the motion judge to assess the trial record."   Commonwealth v.

Laguer, 448 Mass. 585, 593 (2007) (citation omitted).    In

addition, when a new trial motion is constitutionally based, as

is one of the claims at issue here, "this court will exercise

its own judgment on the ultimate factual as well as legal

conclusions."   Commonwealth v. Salvati, 420 Mass. 499, 500

(1995), quoting from Commonwealth v. Tucceri, 412 Mass. 401, 409

(1992).

    After the briefs were submitted in this case, the Supreme

Judicial Court issued a series of cases involving challenges to

guilty pleas pursuant to Mass.R.Crim.P. 30(b), as appearing in

435 Mass. 1501 (2001), on grounds that the pleas were entered
                                                                   7


neither knowingly nor voluntarily as the result of misconduct by

Dookhan.   We know of no published decision in Massachusetts in

which the appeal was from a conviction after trial, rather than

from a guilty plea.   The lead case in the recent spate of

decisions, however, includes a lengthy discussion regarding

challenges from a conviction after trial, which is instructive

in analyzing the issues presented here.4   See Scott, 467 Mass. at

358-362.

     At the outset, the court in Scott detailed the method for

testing illicit narcotics at the Hinton lab and Dookhan's role

in those tests.   Id. at 338-342.   The court explained that

Hinton lab protocols required two levels of testing on each

substance submitted for testing.    "Primary tests [were] simple

bench top tests [that] have only moderate discriminatory power

[to detect a specific substance] . . . . [S]econdary, or

confirmatory, tests were conducted [with] sophisticated

instrumentation [that] have high discriminatory power, and . . .

     4
       Additionally, in four rescript opinions, the Supreme
Judicial Court vacated the trial judge's decision on the
defendant's motion to withdraw his guilty plea, concluded that
the first prong of the analysis in Ferrara v. United States, 456
F.3d 278, 290 (1st Cir. 2006), had been established, and
remanded each case to allow the trial judge to consider whether
the defendant can show a reasonable probability that had he
known of the allegations against Dookhan at the time of his
plea, he would have refused to plead guilty and insisted on
going to trial. See Commonwealth v. Rodriguez, supra;
Commonwealth v. Davila, 467 Mass. 1005 (2014); Commonwealth v.
Bjork, 467 Mass. 1006 (2014); Commonwealth v. Torres, 467 Mass.
1007 (2014).
                                                                       8


produce instrument-generated documentation of test results."

Id. at 340 (quotations omitted).    When testing of a sample was

complete, a certificate of drug analysis was prepared and signed

by the primary chemist and the secondary or confirmatory chemist

on one line labeled "Assistant Analyst" and their signatures

were notarized, typically by another chemist.     Id. at 340-341.

"Although it is assumed that on the line labeled 'Assistant

Analyst' the signature further to the left is that of the

primary chemist and the signature further to the right is that

of the secondary chemist, nothing on the face of the certificate

confirms that assumption."    Id. at 353 n.9.   In this case,

Dookhan was the confirmatory chemist.

       In addition, the Scott court specifically identified

Doohkan's wrongdoing.   In her capacity as a primary chemist,

Dookhan lied about having tested all the samples in a group,

when she had only tested a select few, and she converted

"negatives to positives."    As a secondary chemist she falsified

other chemists' initials on reports intending to verify the

proper functioning of the instrumentation and lied about having

verified the proper functioning of the instrumentation.       Id. at

341.    Her misconduct continued for years, and touched thousands

of cases that even she is unable to specifically identify.

Because her widespread conduct as a government agent had the

capacity to "undermine[] the very foundation of [a defendant's]
                                                                      9


prosecution," id. at 348, the court aptly described it as

"cast[ing] a shadow over the entire criminal justice system."

Id. at 352.   In response the court concluded that in each

instance that Dookhan served as the assistant analyst either as

the primary chemist or the confirmatory chemist, the "defendant

is entitled to a conclusive presumption that egregious

government misconduct occurred in the defendant's case."5     Ibid.

     Relying on the reasoning in Scott, it is clear that the

initial requirements of both theories presented in this appeal

have been established.   With respect to the claim of newly

discovered evidence, because the breadth and depth of Dookhan's

misconduct was not uncovered until July, 2012, five months after

the defendant's trial, we can readily conclude it is newly

discovered.   See Commonwealth v. Grace, 397 Mass. 303, 306

(1986) (evidence must "have been unknown to the defendant or his

counsel and not reasonably discoverable by them at the time of

trial"); Scott, 467 Mass. at 359.   In addition, because there is

no question that Dookhan, a government agent, affirmatively

identified illicit substances that she had not properly tested,

     5
       The Supreme Judicial Court has taken the view that
Dookhan’s wrongdoing in her roles as the primary and the
confirmatory chemist was equally egregious. Examination of the
briefs and record in the following cases indicates that Dookhan
was either the primary or confirmatory chemist in all of them:
Scott, 467 Mass. at 346 (primary chemist); Rodriguez, 467 Mass.
1002 (primary chemist); Davila, 467 Mass. 1005 (confirmatory
chemist); Bjork, 467 Mass. 1006 (primary chemist); Torres, 467
Mass. 1007 (confirmatory chemist).
                                                                     10


those representations are exculpatory because they undermined

the foundation of the defendant's prosecution and, in turn,

triggered the requirement of prosecutorial disclosure.     See

Tucceri, 412 Mass. at 412 (prosecution obligated to deliver

exculpatory evidence to defense); Commonwealth v. Martin, 427

Mass. 816, 824 (1998) ("A prosecutor's obligations extend to

information in possession of a person who has participated in

the investigation or evaluation of the case and has reported to

the prosecutor's office concerning the case"); Commonwealth v.

Lykus, 451 Mass. 310, 327 (2008).    See generally Scott, 467

Mass. at 347-348.

    Thus, the focus in this appeal is the second part of the

analysis in each claim, specifically prejudice or materiality.

Id. at 360.     In either a common-law claim of newly discovered

evidence or a constitutional claim of prosecutorial

nondisclosure, the defendant must demonstrate essentially the

same requirement, namely that there is a "substantial risk that

the jury would have reached a different conclusion had the

evidence been admitted at trial," ibid., quoting from Grace, 397

Mass. at 306.    See Tucceri, 412 Mass. at 406, 413.   "The judge

need not be convinced that the jury's verdict would have been

different but rather that the evidence would have been a 'real

factor' in the jury's deliberations."     Scott, 467 Mass. at 360.

See Tucceri, 412 Mass. at 414 ("It is enough that, on a full and
                                                                       11


reasonable assessment of the trial record, the absent evidence

would have played an important role in the jury's deliberations

and conclusions, even though it is not certain that the evidence

would have produced a verdict of not guilty").    This requirement

has been equated with the second prong of "the Saferian

ineffective assistance of counsel standard."     Scott, 467 Mass.

at 360, quoting from Tucceri, 412 Mass. at 406, 413.

    Here, it is clear that Dookhan's role as the confirmatory

chemist was significant.    Only the confirmatory chemist uses

sophisticated instrumentation in the testing process that has

both a high discriminatory power to identify the substance and

the ability to produce instrument-generated documentation of

test results.    Scott, 467 Mass. at 340-341.   The simple bench

top tests conducted by the primary chemist provide neither

safeguard.   Ibid.   Without the secondary test, only the results

of the simple bench top tests conducted by the primary chemist

are available.    By definition these tests are less

discriminatory, and it is far from clear that such tests are

sufficiently reliable to be admitted.    If admitted, standing

alone, discriminatory weaknesses provide substantial fodder for

cross-examination.     See Commonwealth v. Fernandez, 458 Mass.

137, 147-151 (2010).    Here, proof of Dookhan's wrongdoing as it

related to the defendant's case provides its own shadow of

reasonable doubt about the nature of the substances tested.       In
                                                                  12


sum, we have no difficulty concluding that evidence of the

"'particularly pernicious' government misconduct" by Dookhan

would have been a real factor in the jury's deliberation on the

narcotics charges.   Scott, 467 Mass. at 347, quoting from

Ferrara v. United States, 456 F.3d 278, 291 (1st Cir. 2006).

    2.   Sufficiency of the evidence.   a.   The drugs.   The

defendant argues that there was insufficient evidence to

establish that he intended to distribute the ten rocks of crack

cocaine that were found shortly after his apprehension and that

the most the Commonwealth could prove was possession.     Applying

the familiar standard articulated in Commonwealth v. Latimore,

378 Mass. 671, 676-677 (1979), we conclude that the evidence,

when viewed in the light most favorable to the Commonwealth, was

sufficient to satisfy a rational trier of fact of each element

of the offense beyond a reasonable doubt.    Here, the quantity of

the drugs, the packaging of the drugs, and the paraphernalia,

such as the scale and the particularly incriminating box of

plastic sandwich bags found in the backpack, bolstered by the

defendant’s attempted flight and the absence of any smoking

paraphernalia either in the apartment or in the defendant's

possession, provided ample evidence for the trier of fact to

conclude that the defendant was not merely in possession of the

drugs, but intended to distribute them.     See Commonwealth v.

Little, 453 Mass. 766, 771-772 (2009); Commonwealth v. Sepheus,
                                                                  13


468 Mass. 160, 167-168 (2014); Commonwealth v. Montalvo, 76

Mass. App. Ct. 319, 324, 327 (2010).

     To the extent the defendant suggests the evidence is

lacking because no expert police testimony was offered, the

argument fails to recognize that such testimony is not required.6

See Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 427-428

(1985) (no expert testimony was offered and court made clear

intent to distribute is factual question which may be proved by

circumstantial evidence); Commonwealth v. Gonzalez, 47 Mass.

App. Ct. 255, 257-259 (1999) (same).

     b.   The guns and ammunition in the backpack.   The defendant

argues that because Moore was in the smaller bedroom where the

backpack was found, only conjecture or guesswork would permit a

fact finder to choose between two alternative propositions,

namely, that Moore had stuffed the guns (and presumably the

ammunition) into the defendant's backpack when he heard the

police approaching, or that the guns belonged to the defendant.

The difficulty with the claim is that the alternatives are not

equally supported by the evidence.

     Apart from Moore's presence in the room with the zipped

backpack, there is no evidence that ties him to it or the

contents therein.   Police testimony is devoid of any evidence


     6
       The trial judge did not permit the Commonwealth to elicit
such testimony from the police officer.
                                                                  14


that Moore was moving quickly or even near the backpack when

they entered the room, and he was not arrested or charged in

this case.   Moreover, one gun was buried at the bottom of the

backpack, underneath clothing, and the other placed on the top

of the other contents.   It is hardly reasonable to think that

Moore had the time, the interest, or even the motive to collect

and stuff into the backpack all the items found therein, or that

he would have buried only one of the weapons and left the other

sticking out near the top.    In any event, the evidence was

sufficient to demonstrate that the backpack and its contents --

which included letters addressed to the defendant at the address

he gave to the booking officer in this case and clothing that

could have been the size he wore -- belonged to him and that he

left it behind in his rush to escape apprehension by the police.

    Conclusion.   The portion of the order denying the

defendant's motion for new trial on the drug charge is reversed,

the judgment thereon is reversed, and the verdict set aside.

The portion of the order denying the motion for new trial on the

firearms and ammunition charges is affirmed, as are the

judgments on those charges.

                                     So ordered.
