Commonwealth v. Troy Anderson. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
21-P-1124
COMMONWEALTH
vs.
TROY ANDERSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2011, the defendant was indicted and arraigned in the
Superior Court on several counts of possession and distribution
of cocaine.1 The drugs were tested at the William A. Hinton
State Laboratory Institute (Hinton lab). The defendant
ultimately pleaded guilty in 2014 to one count of distribution
of cocaine as a subsequent offender and one count of possession
of cocaine with the intent to distribute and was sentenced.2 In
1 On August 23, 2011, a grand jury returned indictments charging
the defendant with unlawful possession of cocaine with the
intent to distribute and distribution of cocaine, G. L. c. 94C,
§ 32A (c), with enhancements as a subsequent offender, G. L.
c. 94C, § 32A (d), and a habitual offender, G. L. c. 279,
§ 25 (a); and unlawful distribution of a class B substance in a
school zone, G. L. c. 94C, § 32J.
2 The Commonwealth agreed to dismiss the school zone charge, the
habitual offender enhancements, and the subsequent offender
enhancement attached to the possession charge. After a
colloquy, the plea judge accepted the defendant's guilty pleas
and sentenced him to three and one-half years on the
2021, the defendant filed an assented-to motion to withdraw his
guilty pleas; his motion was denied. Because we are not
persuaded that the motion judge's ruling involved any violation
of the separation of powers doctrine or that the defendant
otherwise satisfied the showing required to establish
entitlement to a new trial, see Mass. R. Crim. P. 30 (b), as
appearing in 435 Mass. 1501 (2001), we affirm.
Background. In or around July 2011, prior to the
defendant's arraignment and his pleas, the drugs at issue in his
case were tested at the Hinton lab. Subsequent investigation
revealed that chemist Annie Dookhan, who worked at the Hinton
lab during that time, engaged in serious misconduct in her
handling of drug samples while at work, and that the lab
suffered from a lack of operational oversight. See Commonwealth
v. Scott, 467 Mass. 336, 338-342 (2014). There is, however, no
dispute that Dookhan herself was not involved in the testing or
certification of the substances in the defendant's case, and the
defendant made no claim that any specific government misconduct
tainted the testing of those particular drugs.
Based on concerns about "systemic misconduct in the Hinton
Lab," on March 22, 2021, the Suffolk County District Attorney's
office announced the "Hinton Lab Initiative," pledging to treat
distribution count and two years of probation from and after
that sentence on the possession count.
2
all defendants with convictions based on substances tested at
Hinton lab between May 1, 2003, and August 30, 2012, as "List
Two" defendants, as described in Bridgeman v. District Attorney
for the Suffolk Dist., 476 Mass. 298, 327-328 (2017)
(Bridgeman II), and on that basis, to seek to vacate and dismiss
those convictions.3 Six months later, on September 21, 2021, the
defendant filed a motion for new trial seeking to withdraw his
guilty pleas pursuant to Mass. R. Crim. P. 30 (b), as appearing
in 435 Mass. 1501 (2001), citing to the District Attorney's
pledge in furtherance of the Hinton Lab Initiative. Although
the Commonwealth assented to the defendant's motion, the motion
judge denied it, explaining that the defendant had failed to
show that any misconduct occurred in the testing of the
substances in his case. The defendant filed a timely appeal.4
Discussion. 1. Standard of review. "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
3 In Bridgeman II, the Supreme Judicial Court set out a protocol
for case-by-case resolution of "the drug cases of potentially
more than 20,000 relevant Dookhan defendants" that then
remained. Bridgeman II, 476 Mass. at 327. The "List Two"
defendants are the "relevant Dookhan defendants" -- those who
were convicted of drug offenses or pleaded guilty after their
drug certificate was signed by Dookhan, see id. at 306 n.8 --
whose cases the District Attorneys would identify for dismissal
following an individualized review. Id. at 327-328.
4 The Commonwealth did not file a brief in this matter but did
appear and answer questions at oral argument.
3
new trial is thus committed to the sound discretion of the
judge." Scott, 467 Mass. at 344. Our review is for an abuse of
that discretion. Id. But see Commonwealth v. Watkins (No. 1),
486 Mass. 801, 804 (2021).
2. Separation of powers. We discern no separation of
powers issue or other infringement on the prosecutor's authority
in the judge's denial of the defendant's assented-to motion to
vacate his pleas. The defendant's argument to this effect
relies on a misunderstanding of the limitations on a district
attorney's discretion to dismiss a case.
In Massachusetts, "[a] prosecuting attorney may enter a
nolle prosequi of pending charges at any time prior to the
pronouncement of sentence or the imposition of probation or the
entry of an order of continuance without a finding." Mass. R.
Crim. P. 16 (a), as amended, 489 Mass. 1501 (2022).5 Once a
defendant has been sentenced, the power to correct errors or
otherwise address unfairness in that case is vested in the
judiciary, not in the executive branch. See Commonwealth v.
Dascalakis, 246 Mass. 12, 20 (1923). It is for that reason
that, even when the Commonwealth affirmatively supports reversal
of a conviction on appeal, we have the "duty of independently
5 Of course, once jeopardy attaches, a nolle prosequi without the
consent of the defendant acts as an acquittal. Mass. R. Crim.
P. 16 (b), 378 Mass. 885 (1979).
4
determining whether there was error." Commonwealth v. Waterman,
98 Mass. App. Ct. 651, 654 (2020). Accord Commonwealth v.
DeJesus, 468 Mass. 174, 182 n.8 (2014). Indeed, on occasion we
have affirmed a conviction on appeal despite the Commonwealth's
agreement that it should be reversed. See, e.g., Commonwealth
v. McCollum, 79 Mass. App. Ct. 239, 248-249 (2011).
For that reason, notwithstanding the prosecution's assent
to the defendant's motion, art. 30 of the Massachusetts
Declaration of Rights did not, as the defendant contends,
require the motion judge to accede to the prosecutor's wishes.
Rather, because "the proper administration of the criminal law
cannot be left merely to the stipulation of parties," the motion
judge's "judicial obligations compel[led him] to examine
independently the errors confessed." Commonwealth v. Poirier,
458 Mass. 1014, 1015 (2010), quoting Young v. United States, 315
U.S. 257, 258-259 (1942). The District Attorney's assent to the
motion did not necessitate that the judge grant it under
separation of powers principles or any other theory of
prosecutorial authority. There was no abuse of discretion or
error of law in the judge's denial of the defendant's motion on
this basis.
3. Governmental misconduct. To the extent that the
defendant argues that the District Attorney's assent to his
motion reflected that misconduct at the Hinton lab rendered the
5
evidence in his case "unreliable," and that he was therefore
entitled to withdraw his pleas on that basis, we are not
persuaded.
In 2014, the Supreme Judicial Court laid out the method for
analyzing cases in which a defendant has moved to withdraw a
guilty plea due to misconduct affecting the testing of drugs in
his or her case at the Hinton lab. In Scott, 467 Mass. at 346-
353, the court articulated a two-part test based on Ferrara v.
United States, 456 F.3d 278, 290 (1st Cir. 2006) (Ferrara-Scott
test). See Bridgeman II, 476 Mass. at 304. "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." Commonwealth v. Resende, 475 Mass. 1, 3 (2016). Where
Dookhan signed a defendant's drug certificate as the primary or
secondary analyst, the defendant is entitled to a conclusive
presumption as to the first prong. Scott, supra at 352.
The defendant here has not shown or alleged that Dookhan
signed his drug certificate, only that the substances underlying
his conviction were tested at the Hinton lab during the
timeframe that Dookhan worked there. Where, as in this case,
Dookhan was not involved in the testing of the substances, the
defendant is not entitled to the presumption under Scott,
6
regardless of the District Attorney's support of the motion.6
Absent that presumption, the defendant -- who proffered no
evidence of misconduct specific to his case -- failed to show
more than that the drugs were tested at the Hinton lab during
the time that Dookhan or Sonja Farak, the chemist at the heart
of a separate scandal, worked there.7 On the record before us,
the judge acted within his discretion in denying the motion for
failure to meet the first prong of the Ferrara-Scott test.8 See
Commonwealth v. Lewis, 96 Mass. App. Ct. 354, 361 (2019).
Conclusion. The judge did not abuse his discretion in
denying the defendant's motion for new trial and, accordingly,
6 We note that the District Attorney's response to the
defendant's motion for new trial states that, here, the assent
was based on her concerns about "systemic corruption and
misconduct," and not on "any additional identified misconduct by
individual Hinton Lab employees or any insufficiency of the
Hinton Drug Lab investigation." The Commonwealth has not taken
any different position on appeal.
7 The defendant does not claim that Farak had any role in
analyzing the drugs in his case.
8 Should evidence come to light showing misconduct connected to
the defendant's drug certificate, nothing in our decision today
should be read to preclude the defendant from filing a new
motion supported by the newly uncovered evidence.
7
the order is affirmed.
Order denying motion for new
trial affirmed.
By the Court (Ditkoff, Hand &
D'Angelo, JJ.9),
Clerk
Entered: June 2, 2023.
9 The panelists are listed in order of seniority.
8