Commonwealth v. Gaston

• Decision Date: 31 October 2014
• Docket Number: No. 12–P–1215.,12–P–1215.
• Citation: 18 N.E.3d 1118,86 Mass.App.Ct. 568
• Parties: COMMONWEALTH v. Justin C. GASTON.
• Court: Appeals Court of Massachusetts

86 Mass.App.Ct. 568

18 N.E.3d 1118

COMMONWEALTH

v.Justin C. GASTON.

No. 12–P–1215.

Appeals Court of Massachusetts, Suffolk.

Argued May 7, 2014.

Decided Oct. 31, 2014.

William M. White, Jr., for the defendant.

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

Present: CYPHER, KAFKER, & HANLON, JJ.

Opinion

CYPHER, J.

The defendant, Justin Gaston, appeals from the denial of a motion for new trial and from his convictions by a 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.

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 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 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 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, 5 N.E.3d 530 (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, 5 N.E.3d 519 (2014), quoting from Commonwealth v. Robideau, 464 Mass. 699, 701–702, 985 N.E.2d 96 (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, 863 N.E.2d 46 (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, 650 N.E.2d 782 (1995), quoting from Commonwealth v. Tucceri, 412 Mass. 401, 409, 589 N.E.2d 1216 (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 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, 5 N.E.3d 530.

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, 5 N.E.3d 530. 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 ... produce instrument-generated documentation of test results.” Id. at 340, 5 N.E.3d 530 (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, 5 N.E.3d 530. “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, 5 N.E.3d 530. In this case, Dookhan was the confirmatory chemist.

In addition, the Scott court specifically identified Dookhan'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, 5 N.E.3d 530. 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] prosecution,” id. at 348, 5 N.E.3d 530, the court aptly

described it as “cast[ing] a shadow over the entire criminal justice system.” Id. at 352, 5 N.E.3d 530. 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...