Commonwealth v. Francis

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SJC-11988
COMMONWEALTH vs. DANIEL FRANCIS.
Suffolk. March 8, 2016. - July 20, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Controlled Substances. Constitutional Law, Conduct of
government agents. Due Process of Law, Disclosure of
evidence, Presumption. Practice, Criminal, New trial,
Conduct of government agents, Disclosure of evidence,
Presumptions and burden of proof. Evidence, Certificate of
drug analysis, Disclosure of evidence, Presumptions.
Indictments found and returned in the Superior Court
Department on March 13, 2006.
The cases were tried before Frank M. Gaziano, J., and a
motion for a new trial, filed on October 1, 2012, was considered
by him.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
David J. Rotondo for the defendant.
Benjamin B. Selman, Committee for Public Counsel Services,
for Committee for Public Counsel Services.
Vincent J. DeMore, Assistant District Attorney, for the
Commonwealth.
2
GANTS, C.J. This is yet another in the series of cases
arising from the misconduct of Annie Dookhan when she was
employed as a chemist at the William A. Hinton State Laboratory
Institute (Hinton drug lab). Here, the defendant was found
guilty at trial of the trafficking and distribution of cocaine.
At trial, certificates of drug analysis (drug certificates) were
admitted in evidence, signed by Dookhan as an assistant analyst,
that declared that the substances in question were cocaine and
that set forth their weight. The defendant learned of Dookhan's
misconduct after trial, and now moves for a new trial based on
that misconduct. At issue on appeal is whether a defendant
found guilty at trial who moves for a new trial is entitled to
the same conclusive presumption of "egregious government
misconduct" that we applied in Commonwealth v. Scott, 467 Mass.
336, 352-354 (2014), to cases where a defendant seeks to
withdraw his or her guilty plea after learning of Dookhan's
misconduct.
We conclude that a defendant in these circumstances is
entitled to the same conclusive presumption. The consequence of
the conclusive presumption is that we deem it error to have
admitted the drug certificates or comparable evidence regarding
Dookhan's drug analysis where the defendant had no knowledge of
Dookhan's misconduct and therefore no opportunity to challenge
the admissibility or credibility of that evidence. We further
3
conclude that the appropriate standard to be applied to the
erroneous admission of this evidence is the prejudicial error
standard applied to preserved nonconstitutional errors.
Applying that standard, we conclude that, apart from the drug
certificates, the evidence regarding the weight and identity of
the substances in question was not overwhelming, and we
therefore are not "sure that the error did not influence the
jury, or had but very slight effect." Commonwealth v. Vinnie,
428 Mass. 161, 163, cert. denied, 525 U.S. 1007 (1998), quoting
Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
Consequently, we vacate the defendant's convictions and grant
the defendant a new trial. 1
Background. On October 4, 2006, the defendant was
convicted by a Superior Court jury of trafficking in twenty-
eight grams or more of cocaine, in violation of G. L. c. 94C,
§ 32E (b) (2), 2 and unlawful distribution of cocaine, in
violation of G. L. c. 94C, § 32A (c). We summarize the evidence
at trial, reserving discussion of some of the evidence for
later.
1
We acknowledge the amicus brief submitted by the Committee
for Public Counsel Services.
2
The defendant was indicted and convicted in 2006, prior to
the passage of St. 2012, c. 192, § 21, which increased the drug
weights in G. L. c. 94C, § 32E (b). The increased drug weights
do not apply to him. See Commonwealth v. Didas, 471 Mass. 1, 8-
10 (2015).
4
On November 22, 2005, Boston police Officer Andrew Miskell,
along with other officers in the drug control unit, conducted
physical surveillance of the area outside the Forest Hills
subway station in the Jamaica Plain section of Boston. At
approximately 8:30 P.M., Officer Miskell observed a man, later
identified as Marcus Henderson, on three separate occasions
leave the passenger seat of a motor vehicle, walk to a public
pay telephone, make quick telephone calls, and then return to
his vehicle and wait. After approximately ten minutes, a man,
later identified as the defendant, arrived and parked his
vehicle about thirty to forty feet in front of Henderson's
vehicle. Henderson then left his vehicle and entered the
passenger's side of the defendant's vehicle.
Officer Miskell saw the two men turn towards each other;
after "a brief encounter," Henderson left the defendant's
vehicle and walked towards his vehicle. Two other members of
the drug control unit, Detective Aaron Blocker and Officer
Lawrence Celester, approached Henderson, and Detective Blocker
told Henderson that he had "to conduct a threshold inquiry."
Henderson then placed a plastic bag of what appeared to the
officers to be "crack" cocaine in his mouth. Officer Celester
told Henderson that they were not interested in him, and if he
wanted to cooperate, he should give them the drugs. Henderson
then spit out the bag. After Henderson was placed under arrest,
5
Detective Blocker informed Officer Miskell that he had recovered
drugs from Henderson.
Officer Miskell followed the defendant's vehicle and, when
it was stuck in traffic, approached the driver's side on foot.
He displayed his badge, announced that he was a police officer,
and ordered the defendant to step out from the vehicle. Officer
Miskell observed that the defendant held cash in his left hand,
which the officer removed from him upon placing him under
arrest. The cash that was seized from the defendant's hand
totaled $360. An additional $597 in cash was recovered from the
defendant during the booking process.
The defendant's vehicle was searched in the parking lot of
the police station later that evening by Sergeant Detective
William Feeney. He observed a "Gunk Fix-A-Flat" can in a bag on
the back seat that he recognized as a "hide-a-can." He
unscrewed the removable bottom portion of the can and found two
plastic bags inside that contained individually wrapped bags of
a substance that he believed to be crack cocaine.
At the police station, the defendant was informed of the
Miranda rights and interviewed by Officer Kenneth Reid in an
unrecorded conversation. Officer Reid asked the defendant
"where he got his drugs from and how much drugs he was selling."
The defendant said that he sold between one-quarter and one-half
kilograms of cocaine every one and one-half weeks. Officer Reid
6
told the defendant that he would like to learn who was supplying
the defendant with this cocaine, and the defendant told him that
his supplier was a "white male from the [N]orth [S]hore area";
that he "would call his supplier up and order a half a kilogram
of cocaine"; and that "[the police] could arrest [the supplier]
. . . when [the supplier] made the cocaine delivery." Officer
Reid informed the defendant that the district attorney would
have to approve using him as a confidential informant, and that
that would have to wait until he was arraigned and obtained
counsel.
Through the testimony of Detective Blocker and Sergeant
Detective Feeney, the Commonwealth offered in evidence three
drug certificates signed by Dookhan as "Assistant Analyst" on
January 20, 2006. The first drug certificate regarding the
substance seized from Henderson declared that the tested
substance was cocaine and that it weighed 1.34 grams. The
second certificate declared that the substance contained in
eight plastic bags was cocaine with a net weight of 19.66 grams.
The third certificate declared that the tested substance
contained in thirty nine plastic bags was cocaine with a net
weight of 19.04 grams.
After the Commonwealth rested, Henderson testified that he
telephoned the defendant and waited for him at the subway
station because he wanted to give the defendant some money to
7
purchase beer and liquor for him for Thanksgiving. When the
defendant arrived, Henderson entered the defendant's vehicle,
gave the defendant between eighty and one hundred dollars, along
with directions to his home, and showed the defendant a small
package of cocaine that he had in his mouth. He stated that the
defendant had not given the cocaine to him.
The defendant testified that he and Henderson "had some
arrangement to get together for Thanksgiving," and that
Henderson gave him one hundred dollars in cash for food,
beverages, and liquor, as well as directions to Henderson's
home, after Henderson entered his vehicle. Henderson also
showed him "a substance," and asked if he knew someone who would
purchase it. The defendant said that he did not.
In 2012, six years after the jury returned their guilty
verdicts, the defendant moved for a new trial pursuant to Mass.
R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001),
claiming that he was entitled to a new trial because of newly
discovered evidence arising from Dookhan's misconduct in
conducting drug analyses at the Hinton drug lab and because he
was deprived of due process by the failure of the Commonwealth
to provide him with discovery regarding her misconduct, in
violation of the Fourteenth Amendment to the United States
Constitution and art. 12 of the Massachusetts Declaration of
Rights. The trial judge denied the motion, finding that the
8
evidence questioning the validity of the drug certificates was
not newly discovered because the defendant failed to show "that
Dookhan engaged in misconduct in his case, or even that she was
engaged in misconduct at the time the evidence in the
defendant's case was tested." The judge further found that,
even if the evidence were newly discovered, it is not material
because the defendant admitted that he sold one-quarter to one-
half kilogram of cocaine every one and one-half weeks, and
"referred to the evidence recovered from Henderson as crack
cocaine." 3 The judge further found that the defendant had not
3
The only statements by the defendant that arguably could
be construed as referring "to the evidence recovered from
Henderson as crack cocaine" came in response to the following
two questions of the prosecutor on cross-examination:
Q.: "I want to draw your attention back to the
testimony you gave about [Marcus] Henderson being in your
car. You just told the jury that Mr. Henderson showed you
a piece of crack and he asked you if you knew anyone who
would purchase it."
A.: "Yes, sir."
Q.: "So it's your testimony today that this is a
series of bad luck that the police were conducting
surveillance at Forest Hills T stop on November 22nd, 2005;
bad luck that Mr. Henderson got into your car with about a
hundred dollars['] worth of crack; bad luck that he asked
you, coincidentally, if you knew somebody that could
purchase it; and further bad luck that the police found
three thousand dollars['] worth of drugs in your car and
nine hundred and fifty-seven dollars in cash on your person
when you're employed. That's just bad luck?"
A.: "Yes, sir."
9
been deprived of due process because "the evidence was not in
the possession, custody, or control of the prosecutor, [and] the
Commonwealth's failure to disclose that which it did not know
existed cannot be a failure to comply with its obligations under
Brady [v. Maryland, 373 U.S. 83 (1963)]."
A panel of the Appeals Court affirmed the judge's order in
an unpublished memorandum and order issued pursuant to its rule
1:28. See Commonwealth v. Francis, 88 Mass. App. Ct. 1101(2015). The panel declared that "this case did not turn on the
results of the drug analysis," and concluded, "In short, because
the defendant admitted to selling large quantities of cocaine
and acknowledged that the substance possessed by Henderson was
cocaine, no ground has been made to appear on this record to
cause us to disturb the judge's denial of the defendant's motion
for a new trial." We granted the defendant's motion for further
appellate review.
Discussion. In Scott, 467 Mass. at 346, we adopted the
two-pronged test in Ferrara v. United States, 456 F.3d 278, 290
(1st Cir. 2006), which requires a defendant who sought to vacate
a guilty plea because of government misconduct to show "both
that 'egregiously impermissible conduct . . . by government
agents . . . antedated the entry of his plea' and that 'the
As earlier noted, on direct examination the defendant referred
to the "substance" in Henderson's mouth and did not characterize
it as cocaine or crack.
10
misconduct influenced his decision to plead guilty or, put
another way, that it was material to that choice.'" In
considering whether the defendant in Scott had satisfied the
first prong of this test, we summarized the findings of the
State police investigation of Dookhan's conduct at the Hinton
drug lab. We noted that, among other misconduct:
• She "admitted to 'dry labbing' for two or three years prior
to her transfer out of the lab in 2011, meaning that she
would group multiple samples together from various cases
that looked alike and then test only a few samples, but
report the results as if she had tested each sample
individually." Scott, 467 Mass. at 339.
• She admitted to "contaminating samples intentionally,
including turning negative samples into positive samples on
at least a few occasions." Id.
• She admitted that she removed samples from the evidence
locker in breach of lab protocols, postdated entries in the
evidence log book, and forged an evidence officer's
initials. Id.
• She falsified reports intended to verify that the gas
chromatography-mass spectrometer machine used in
"confirmatory" drug testing was functioning properly before
she ran samples through the machine. Id. at 339-340.
11
We concluded that, because Dookhan "made a number of affirmative
misrepresentations by signing drug certificates and testifying
to the identity of substances in cases in which she had not in
fact properly tested the substances in question," Dookhan's
misconduct was "egregious." Id. at 348.
We also concluded that, even though there was no indication
that any prosecutor knew of her misconduct, id. at 350 n.7, her
egregious misconduct was "attributable to the government" for
purposes of a motion for new trial, id. at 350 & n.7, because as
a primary and secondary chemist she "participated in the
investigation or evaluation of the case" and "reported to the
prosecutor's office concerning the case." Id. at 349, quoting
Commonwealth v. Martin, 427 Mass. 816, 824 (1998).
We also noted that Dookhan acknowledged "that she may not
be able to identify those cases in which she tested the samples
properly and those in which she did not." Scott, 467 Mass. at
339. "Thus, even if Dookhan herself were to testify in each of
the thousands of cases in which she served as primary or
secondary chemist, it is unlikely that her testimony, even if
truthful, could resolve the question whether she engaged in
misconduct in a particular case." Id. at 352. Because it was
"reasonably certain . . . that her misconduct touched a great
number of cases," id., but "may be impossible" for any defendant
to prove that the drug analysis in his or her case was tainted
12
by her misconduct, id. at 351, we recognized that her
"particularly insidious form of misconduct, which belies
reconstruction," resulted in "a lapse of systemic magnitude in
the criminal justice system," id. at 352.
To protect "the due process rights of defendants, the
integrity of the criminal justice system, [and] the efficient
administration of justice . . . in the wake of government
misconduct that has cast a shadow over the entire criminal
justice system," we exercised our superintendence power and held
that, where Dookhan signed the drug certificate in a defendant's
case as an assistant analyst, a defendant who seeks to vacate
his or her guilty plea after learning of Dookhan's misconduct
"is entitled to a conclusive presumption that egregious
government misconduct occurred in [his or her] case." Id.
Noting that "the full extent of Dookhan's misconduct may never
be known," id. at 341, we did not limit the conclusive
presumption to any time period; it applies in every case where
Dookhan signed the drug certificate as an assistant analyst.
See id. at 352-353.
The consequence of the conclusive presumption of egregious
government misconduct is that a defendant could satisfy the
first prong of the Ferrara test simply by showing that Dookhan
had signed the drug certificate in his or her case as an
assistant analyst. The defendant then would need to satisfy the
13
second prong of that test by demonstrating "a reasonable
probability that he [or she] would not have pleaded guilty had
he [or she] known of Dookhan's misconduct." Id. at 355.
1. Applicability of conclusive presumption where defendant
is found guilty at trial. In Scott, we declared that the remedy
of a conclusive presumption of egregious government misconduct
is "sui generis," 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."
Scott, 467 Mass. at 353-354. Because the defendant in Scott
sought a new trial after pleading guilty, we did not address
whether the remedy would also apply where a defendant seeks a
new trial after having been found guilty at trial. We address
that issue here, and conclude that the same conclusive
presumption of egregious government misconduct applies where a
defendant seeks to vacate his or her conviction at trial after
learning of Dookhan's misconduct. 4
4
We declared in Commonwealth v. Scott, 467 Mass. 336, 354
(2014), that this "presumption shall not apply in a trial in
which the defendant seeks to impeach the testing process
utilized at the Hinton drug lab, including those new trials
conducted following a grant of a defendant's motion to withdraw
a guilty plea pursuant to our holding in this case." But this
means only that the conclusive presumption of egregious
government misconduct shall not be applied in a future trial by
a finder of fact who is evaluating the credibility of the
testimony of a laboratory chemist regarding the testing process
used to identify the substance in question as a controlled
substance.
14
Regardless whether a defendant pleads guilty to a drug
offense or is found guilty at trial, where Dookhan examined the
substance in question as a primary or confirmatory chemist, the
evidence is still potentially tainted by Dookhan's misconduct,
the taint is still attributable to the government, and it may
still be impossible for the defendant to prove that the drug
analysis in his or her case was actually tainted by Dookhan's
misconduct. A trial may be tainted by egregious government
misconduct just as surely as a guilty plea. Therefore, we
conclude that, in deciding the defendant's motion for a new
trial, the judge erred in not applying the conclusive
presumption of egregious government misconduct that we declared
in Scott. See Commonwealth v. Gaston, 86 Mass. App. Ct. 568,
571, 573 (2014) (applying conclusive presumption of egregious
government misconduct in motion for new trial after jury trial
where Dookhan was confirmatory chemist and primary chemist
testified at trial that substance was cocaine). 5,6
As in Scott, the consequence of the conclusive presumption
of egregious government misconduct for a defendant convicted at
5
The judge's denial of the motion for a new trial occurred
more than three months after our opinion issued in Scott, 467
Mass. 336.
6
The Commonwealth conceded at oral argument that there was
no sound reason why the conclusive presumption of egregious
government misconduct would apply to a motion for a new trial
following a guilty plea but not a comparable motion following
conviction at trial.
15
trial is that a defendant who shows that Dookhan had signed the
drug certificate in his or her case as an assistant analyst is
entitled to a new trial if he or she can show prejudice
resulting from the admission of that evidence. However, the
prejudice standard in Scott, i.e., that "the defendant must
demonstrate a reasonable probability that he [or she] would not
have pleaded guilty had he [or she] known of Dookhan's
misconduct," Scott, 467 Mass. at 354-355, cannot serve as a
prejudice standard where a defendant is convicted at trial. We
consider now what showing of prejudice is required to warrant a
new trial where a defendant is convicted at trial with evidence
tainted by egregious government misconduct.
2. Prejudice standard. Where a prosecutor, investigator,
or analyst whose conduct is "attributable to the government,"
see Scott, 467 Mass. at 350, deliberately fabricates evidence,
such egregious government misconduct violates a defendant's
constitutional right to due process under the Fourteenth
Amendment. See Napue v. People, 360 U.S. 264, 269 (1959) ("it
is established that a conviction obtained through use of false
evidence, known to be such by representatives of the State, must
fall under the Fourteenth Amendment"); Halsey v. Pfeiffer, 750
F.3d 273, 292 (3d Cir. 2014) ("[t]o the best of [the court's]
knowledge, every court of appeals that has considered the
question of whether a [S]tate actor has violated the defendant's
16
right to due process of law by fabricating evidence to charge or
convict the defendant has answered the question in the
affirmative"); Brown v. Miller, 519 F.3d 231, 237 (5th Cir.
2008) ("the deliberate or knowing creation of a misleading and
scientifically inaccurate serology report amounts to a violation
of a defendant's due process rights"). If we were to conclude
that the government had fabricated evidence against a defendant,
we would declare it constitutional error and, at a minimum,
order a new trial unless we were satisfied that the admission of
the fabricated evidence was harmless beyond a reasonable doubt.
See Chapman v. California, 386 U.S. 18, 24 (1967) (before a
"[F]ederal constitutional error can be held harmless, the court
must be able to declare a belief that it was harmless beyond a
reasonable doubt").
In Scott, we did not conclude that Dookhan engaged in
egregious government misconduct in every case where she signed a
drug certificate as an assistant analyst. Rather, we exercised
"our superintendence power to fashion a workable approach to
motions to withdraw a guilty plea brought by defendants affected
by this misconduct," id. at 352, and conclusively presumed that
Dookhan engaged in egregious government misconduct in all such
cases. We fashioned this remedy out of concern for the due
process rights of defendants, the integrity of the criminal
justice system, and the efficient administration of justice,
17
id., but we did not declare that this remedy was
constitutionally required. The consequence of this remedy was
that the defendant was released from the obligation to prove
egregious government misconduct and needed only to prove
prejudice to obtain a new trial.
Because the conclusive presumption was the product of our
superintendence power rather than our obligation to enforce the
constitutional rights of criminal defendants, we conclude that
the appropriate prejudice standard is the standard applied to
preserved nonconstitutional errors, which requires reversal of a
conviction unless we are "sure that the error did not influence
the jury, or had but very slight effect." Vinnie, 428 Mass. at
163, quoting Flebotte, 417 Mass. at 353. In essence, we apply
the conclusive presumption and deem it error to have admitted
the drug certificates or comparable evidence regarding Dookhan's
drug analysis where the defendant had no knowledge of Dookhan's
misconduct and therefore no opportunity to challenge the
admissibility or credibility of that evidence. We apply the
standard for preserved errors because, where the defendant did
not have a genuine opportunity to raise his or her claim at the
time of trial, we review the claim as if it had been properly
preserved. See, e.g., Commonwealth v. Vasquez, 456 Mass. 350,
355-357 (2010); Commonwealth v. Randolph, 438 Mass. 290, 293-294
(2002). That exception to the preserved error requirement
18
applies here, where the defendant had no knowledge of Dookhan's
egregious government misconduct at the time of trial, and
therefore no opportunity to claim that the certificates of
analysis should not be admitted in evidence.
Applying the preserved error standard is especially
appropriate because Dookhan's egregious government misconduct is
material exculpatory evidence that the prosecution
constitutionally was obligated to disclose to the defendant,
even though the prosecutor did not know of her misconduct until
long after the conclusion of trial. In Scott, 467 Mass. at 349,
quoting Martin, 427 Mass. at 824, we noted that "a prosecutor's
duty to disclose exculpatory evidence extends to information in
the 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.'" We concluded that,
where Dookhan was the primary or secondary chemist who examined
a questioned substance, she falls within the rubric of an agent
of the prosecution team and, in considering a motion for a new
trial, information in her possession is deemed to be in the
possession of the prosecution. Scott, supra at 349-350.
Here, drug certificates signed by Dookhan as an assistant
analyst were admitted in evidence under G. L. c. 22C, § 39,
without the testimony of Dookhan or any other analyst that
declared that the substances in question were cocaine and that
19
set forth their net weight. 7 These certificates were admissible
because the case was tried in 2006, three years before the
United States Supreme Court declared that the admission in
evidence of such certificates without the testimony of a
certifying analyst violates the defendant's right to confront
witnesses under the Sixth Amendment to the United States
Constitution and the due process clause of the Fourteenth
Amendment. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 329
(2009). 8 Applying the conclusive presumption, we deem it error
to have admitted those certificates, and applying the
prejudicial error standard, we now examine the evidence at trial
to determine whether the error in admitting those certificates
"did not influence the jury, or had but very slight effect."
7
General Laws c. 22C, § 39, was amended in 2012. See St.
2012, c. 139, § 56. The current version of § 39 (b) is
substantially the same as the version of § 39 in effect at the
time of the defendant's trial and provides:
"A certificate by a chemist or analyst . . . of the
department . . . of the result of the chemist's or
analyst's . . . analysis, signed and sworn to by that
chemist or analyst . . . , shall be prima facie evidence of
the composition, quality and, when appropriate, net weight
of the substance or any mixture containing the substance."
8
Because the defendant seeks a new trial on collateral
review rather than direct appeal, the defendant is not entitled
to the benefit of that ruling. See Commonwealth v. Melendez-
Diaz, 460 Mass. 238, 239-240 (2011) (rule announced by United
States Supreme Court in Melendez-Diaz v. Massachusetts, 557 U.S.
305 [2009], does not apply retroactively to cases on collateral
review).
20
See Vinnie, 428 Mass. at 163, quoting Flebotte, 417 Mass. at
353.
Before we consider the evidence, we note that the
prosecutor in opening statement referred to the drug
certificates by telling the jury, "You'll hear that those bags
were submitted, pursuant to the policies, and that they were
tested and weighed, and it comes out to over twenty eight
grams." The judge in his final instructions told the jury, in
accordance with G. L. c. 22C, § 39, that the certificates were
"'prima facie evidence' of the composition, quality, and net
weight of the substance," which the judge explained meant that,
if the jury were to "accept that evidence," they were "permitted
but not required to conclude that the substance was cocaine."
We first consider the conviction of trafficking in cocaine,
in violation of G. L. c. 94C, § 32E (b) (2), where the
Commonwealth was required to prove beyond a reasonable doubt,
among other elements, that the substance in the can found in the
defendant's vehicle was cocaine and that the weight of the
cocaine was in excess of twenty-eight grams. Here, the drug
certificates provided the only direct evidence of the cumulative
weight -- 38.7 grams. Aside from the certificates, the sole
evidence concerning the weight was furnished by Boston police
Detective Robert Pieroway, who testified as an expert witness
regarding street-level drug sales. He examined the two larger
21
plastic bags seized from the can in the defendant's vehicle, and
stated that one of the larger plastic bags contained "four or
five" small individually knotted plastic bags "with a couple
grams of cocaine in each one." He said that the smaller plastic
bags within the other larger plastic bag "appear to be just
about a gram," but he added, "I don't know how much they weigh,
but they could be like a couple grams apiece." This evidence of
weight is far from overwhelming.
Nor was the weight so much more than twenty-eight grams
that we can infer that the jury were able to discern that the
element regarding weight was satisfied from the contents of the
plastic bags alone. Compare Commonwealth v. Connolly, 454 Mass.
808, 832 (2009). The difference between the declared weight and
twenty-eight grams was only 10.7 grams, which is slightly more
than the weight of four pennies. See Commonwealth v. Montoya,
464 Mass. 566, 573-574 (2013).
It is a closer call whether the erroneous admission of the
drug certificates "did not influence the jury, or had but very
slight effect" as to the identity of the substance, but after
careful analysis we conclude that, without the drug
certificates, the evidence of identity was not overwhelming.
Numerous police officers testified that the substance in
Henderson's mouth and in the can appeared to be cocaine, and
that its packaging and storage were consistent with the way
22
cocaine is typically handled by drug dealers. But none
testified to any expertise in narcotics identification, and none
conducted any field testing. See Commonwealth v. Charles, 456
Mass. 378, 382 (2010) ("arresting police officers, neither of
whom . . . had specialized training or experience in narcotics
identification, offered only conclusory, and largely equivocal,
testimony regarding the composition of the substances," and did
not articulate how their expertise permitted them to identify
substance as cocaine). Compare Connolly, 454 Mass. at 831-832
(positive result on field test supported finding that erroneous
admission of drug certificates was harmless beyond a reasonable
doubt).
The Commonwealth emphasizes the defendant's admission to
Officer Reid that he purchased substantial quantities of cocaine
every one and one-half weeks from a supplier, but this admission
was made in an attempt to persuade the police to elicit his
cooperation in return for leniency, and fails to shed light on
the true composition and weight of the substances in Henderson's
mouth or in the can. The Commonwealth also points to the
defendant's affirmative answers to the two compound questions
asked of him on cross-examination, where the Commonwealth claims
that the defendant admitted that the substance in Henderson's
mouth was crack cocaine and the substance in the can found in
the vehicle was drugs. See note 3, supra. But no reasonable
23
reading of this testimony would give much weight to these so-
called admissions, especially in light of the defendant's
testimony on direct examination that Henderson had shown him "a
substance" and asked if he would purchase it. To be sure, the
defendant did not challenge the identity of the substances as
part of his defense, but such a defense would likely have been
futile because of the admission of the drug certificates, and in
any event, "[t]he Commonwealth's burden of proving every element
of its case cannot be transferred to the defendant because of
his counsel's choice of defense." Vasquez, 456 Mass. at 367-
368. See Commonwealth v. Shea, 398 Mass. 264, 269 (1986)
("defendant's theory of his case cannot relieve the Commonwealth
of its burden of proving every element of a crime beyond a
reasonable doubt"). Because the evidence independent of the
drug certificates did not overwhelmingly prove that the
substance at issue was cocaine, we cannot conclude that the
Commonwealth has met its burden of proving that the admission of
the drug certificates did not influence the jury and or had only
slight effect on their verdicts. See, e.g., Montoya, 464 Mass.
at 572-573; Charles, 456 Mass. at 382-384.
Conclusion. For the reasons stated, the order denying the
motion for a new trial is reversed, the judgments of conviction
are vacated, and the case is remanded to the Superior Court for
a new trial.
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So ordered.