Commonwealth v. Cotto (Lawyers Weekly No. 10-051-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11761 COMMONWEALTH vs. ERICK COTTO, JR. Hampden. December 4, 2014. – April , 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Controlled Substances. Constitutional Law, Plea, Conduct of government agents, Subpoena, Self-incrimination. Due Process of Law, Plea, Disclosure of evidence, Presumption. Practice, Criminal, Plea, Conduct of government agents, Disclosure of evidence, Presumptions and burden of proof, Subpoena. Evidence, Guilty plea, Certificate of drug analysis, Exculpatory, Disclosure of evidence, Presumptions and burden of proof, Testimonial privilege. Witness, Subpoena, Self-incrimination, Privilege. Privileged Communication. Indictments found and returned in the Superior Court Department on June 14, 2007. A motion to withdraw guilty pleas, filed on April 25, 2013, was heard by C. Jeffrey Kinder, J. The Supreme Judicial Court granted an application for direct appellate review. Rebecca A. Jacobstein, Committee for Public Counsel Services, for the defendant. Katherine A. Robertson, Assistant District Attorney, for the Commonwealth. Luke Ryan, for Rafael Rodriguez, amicus curiae, submitted a brief. Glynis MacVeety, for Deon Charles, amicus curiae, submitted a brief. SPINA, J. On June 14, 2007, a Hampden County grand jury indicted the defendant, Erick Cotto, Jr., on charges of trafficking in cocaine (twenty-eight to one hundred grams), G. L. c. 94C, § 32E (b) (2); unlawful possession of ammunition without a firearm identification card, G. L. c. 269, § 10 (h); and being an armed career criminal, G. L. c. 269, § 10G (b). Sonja Farak, then a chemist at the Department of Public Health’s State Laboratory Institute in Amherst (Amherst drug lab), tested the substances in the defendant’s case on June 8, 2007, and signed the certificates of drug analysis (drug certificates).[1] Pursuant to a plea agreement, the defendant pleaded guilty on April 13, 2009, to trafficking in cocaine (fourteen to twenty-eight grams), and unlawful possession of ammunition.[2] On April 1, 2013, a State grand jury indicted Farak on four counts of tampering with evidence, G. L. c. 268, § 13E; four counts of theft of a controlled substance (cocaine) from a dispensary, G. L. c. 94C, § 37; and two counts of unlawful possession of a class B substance (cocaine), G. L. c. 94C, § 34. Approximately three weeks later, the defendant filed a motion to withdraw his guilty pleas pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). He claimed that Farak was a government agent by virtue of her role at […]