Bridgeman v. Dist. Attorney for the Suffolk Dist.

• Citation: 471 Mass. 465,30 N.E.3d 806
• Decision Date: 18 May 2015
• Docket Number: SJC–11764.
• Parties: Kevin BRIDGEMAN & others v. DISTRICT ATTORNEY FOR the SUFFOLK DISTRICT & another.
• Court: United States State Supreme Judicial Court of Massachusetts

471 Mass. 465

30 N.E.3d 806

Kevin BRIDGEMAN & others¹

v.DISTRICT ATTORNEY FOR the SUFFOLK DISTRICT & another.²

SJC–11764.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted Jan. 8, 2015.

Decided May 18, 2015.

Matthew R. Segal (Daniel N. Marx, Boston, with him) for the petitioners.

Benjamin H. Keehn, Committee for Public Counsel Services (Nancy J. Caplan, Committee for Public Counsel Services, with him) for the intervener.

Vincent J. DeMore, Assistant District Attorney, for District Attorney for the Suffolk District.

Quentin Weld, Assistant District Attorney, for District Attorney for the Essex District.

Jean–Jacques Cabou, of Arizona; Joanna Perini–Abbott, of Oregon; & Daniel Gelb & Elizabeth A. Lunt, Boston, for National Association of Criminal Defense Lawyers & another, amici curiae, submitted a brief.

Richard Marshall, of New York, & Aaron M. Katz, C. Thomas Brown, Mark Vaughn, Boston, & Barbara J. Dougan, for Families Against Mandatory Minimums & others, amici curiae, submitted a brief.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

SPINA

, J.

The present case is the latest in a series of cases concerning the egregious misconduct of Annie Dookhan, a chemist who was employed in the forensic drug laboratory of the William A. Hinton State Laboratory Institute (Hinton drug lab)

from 2003 until 2012.³ Kevin Bridgeman, Yasir Creach, and Miguel Cuevas (collectively, the petitioners) are three individuals who pleaded guilty to various drug offenses in cases where Dookhan signed the certificates of drug analysis (drug certificates) on the line labeled “Assistant Analyst.” On January 9, 2014, prior to this court's decision in Commonwealth v. Scott, 467 Mass. 336, 5 N.E.3d 530 (2014)

, the petitioners filed a petition in the county court pursuant to G.L. c. 211, § 3, asking the court for two forms of relief. First, they asked for the establishment of a rule whereby defendants who have been convicted of drug offenses, and who successfully obtain new trials based on Dookhan's misconduct, cannot thereafter be charged with or convicted of more serious offenses than those of which the defendants originally were convicted, or be given longer sentences than originally were imposed. Second, the petitioners requested an order requiring those district attorneys who prosecuted so-called “Dookhan defendants”⁴ to (1) notify all such defendants within ninety days whether the Commonwealth intends to reprosecute them;⁵ (2) vacate the convictions in those cases where the defendants are not so notified; and (3) conclude any reprosecutions within six months. On May 27, 2014, following the release of our decision in Scott, supra,⁶ the Committee for Public Counsel Services (CPCS) filed a motion to intervene under Mass. R. Civ. P. 24(a)

,

365 Mass. 769 (1974), to join the petitioners' requests for relief and to seek additional relief for all Dookhan defendants.⁷ The Commonwealth opposed both the petition for relief pursuant to G.L. c. 211, § 3

, and the motion to intervene. After several hearings, a single justice on October 21, 2014, reserved and reported the entire case to the full court.

For the reasons that follow, we now conclude that (1) a defendant who has been granted a new trial based on Dookhan's misconduct at the Hinton drug lab cannot be charged with a more serious offense than that of which he or she initially was convicted under the terms of a plea agreement and, if convicted again, cannot be given a more severe sentence than that which originally was imposed; (2) the motion to intervene filed by CPCS is allowed; (3) a so-called “global remedy” will not be implemented at this time; (4) a lawyer who represented a Dookhan defendant at the plea stage of criminal proceedings is not barred by the advocate-witness rule from subsequently representing that defendant and testifying at an evidentiary hearing on the defendant's motion to withdraw a guilty plea; (5) the scope of cross-examination of a Dookhan defendant at a hearing on a motion to withdraw a guilty plea is left to the broad discretion of the motion judge; and (6) the testimony of a Dookhan defendant at a hearing on a motion to withdraw a guilty plea is only admissible at a subsequent trial for impeachment purposes if the

defendant chooses to testify.⁸

1. Background. a. Kevin Bridgeman. On April 8, 2005, members of the Boston police department's drug control unit were conducting an undercover operation in the theater district. Officer Greg T. Walsh approached Bridgeman and purchased two rocks of what appeared to be “crack” cocaine for forty dollars in controlled “buy” money. Officers then attempted to arrest Bridgeman, whereupon he resisted and struck one of the officers with a closed fist. When Bridgeman was searched after his arrest, officers found twenty-two plastic bags containing what appeared to be crack cocaine and the forty dollars in buy money.

On June 2, 2005, a Suffolk County grand jury indicted Bridgeman on charges of possession of a class B controlled substance (cocaine) with intent to distribute, as a second or subsequent offense, G.L. c. 94C, § 32A (b )

(count one); distribution of a class B controlled substance (cocaine), as a second or subsequent offense, G.L. c. 94C, § 32A (b ) (count three); violation of the controlled substances laws in proximity to a school, G.L. c. 94C, § 32J (counts two and four); assault and battery on a police officer, G.L. c. 265, § 13D (count five); and resisting arrest, G.L. c. 268, § 32B (count six). The Commonwealth produced drug certificates signed by Dookhan on the line labeled “Assistant Analyst,” stating that the substances at issue contained cocaine as defined in G.L. c. 94C, § 31. Pursuant to a plea agreement, Bridgeman pleaded guilty on October 4, 2005, to counts one (first offense), three (first offense), five, and six. The Commonwealth's motion to dismiss the second or subsequent offense portions of the indictments and the school zone charges was granted.⁹

On July 26, 2007, members of the Boston police department's drug control unit were conducting an undercover operation around Boston Common. An undercover officer approached Bridgeman, engaged him in conversation, walked with him to the Public Garden, and then purchased two plastic bags containing what

appeared to be crack cocaine for forty dollars in buy money. Bridgeman was arrested, and when he was searched, officers found, among other items, ten additional bags containing what appeared to be crack cocaine and the forty dollars in buy money.

On September 24, 2007, a Suffolk County grand jury indicted Bridgeman on charges of possession of a class B controlled substance (cocaine) with intent to distribute, as a subsequent offense, G.L. c. 94C, § 32A (b )

(count one); violation of the controlled substances laws in proximity to a park, G.L. c. 94C, § 32J (count two); and distribution of a class B controlled substance (cocaine), as a subsequent offense, G.L. c. 94C, § 32A (b ) (count three). The Commonwealth again produced drug certificates signed by Dookhan on the line labeled “Assistant Analyst,” stating that the substances at issue contained cocaine as defined in G.L. c. 94C, § 31. Pursuant to a plea agreement, Bridgeman pleaded guilty on April 17, 2008, to counts one and three.¹⁰ The Commonwealth's motion to dismiss the park zone charge was granted. Bridgeman has completed service of his sentences, but has not yet filed a motion for postconviction relief.¹¹

b. Yasir Creach. On January 7, 2005, members of the Boston police department's drug control unit were conducting surveillance in the Chinatown section of Boston. They observed Creach engaging in a brief conversation with another man before the two entered an alley marked with a “no trespassing” sign. The officers followed the men into the alley and saw Creach smoking from a

glass tube that had been modified into a crack pipe. The officers recovered one rock of what appeared to be crack cocaine from the pipe, and Creach was placed under arrest. Three days later, a criminal complaint issued from the Central Division of the Boston Municipal Court Department charging Creach with trespassing, G.L. c. 266, § 120

(count one); and possession of a class B controlled substance (cocaine), G.L. c. 94C, § 34. The Commonwealth produced a drug certificate signed by Dookhan on the line labeled “Assistant Analyst,” stating that the substance at issue contained cocaine as defined in G.L. c. 94C, § 31. Creach pleaded guilty on April 20, 2005, to both charges.¹² He has completed service of his sentences, but has not yet filed a motion for postconviction relief.¹³

c. Miguel Cuevas. On January 5, 2007, members of the Salem police department were conducting an undercover operation in the “Point” neighborhood of Salem. An undercover officer contacted Cuevas by cellular telephone, the two met, and Cuevas sold the officer a “twist” of what the officer believed to be cocaine for forty dollars in buy money. Three days later, undercover officers again contacted Cuevas by cellular telephone and arranged to purchase more cocaine. Cuevas directed the officers to meet him at the corner of Bridge and Rice Streets. Once there, the officers picked up Cuevas from the side of the road and drove him to the vicinity of a residence on Palmer Street. Cuevas got out of the vehicle, disappeared from sight for a few minutes, and then returned with another twist of what the officers believed to be cocaine. On January 10, undercover officers once more contacted Cuevas by cellular telephone and arranged to purchase cocaine and heroin. The officers picked up Cuevas at the corner of Bridge and Rice Streets and again drove him to Palmer Street. Cuevas

got out of the vehicle, briefly entered Theo's Market, and then returned to the vehicle where he sold the officers what appeared to be cocaine and heroin for ninety dollars in buy money.

On October 5, 2007, an Essex County grand jury indicted Cuevas on charges of distribution...