Commonwealth v. Nelson (Lawyers Weekly No. 11-159-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 11-P-1569 Appeals Court COMMONWEALTH vs. DAVID E. NELSON. No. 11-P-1569. Plymouth. September 14, 2016. – November 2, 2016. Present: Green, Wolohojian, & Massing, JJ. Controlled Substances. Constitutional Law, Conduct of government agents. Practice, Criminal, Conduct of government agents, Disclosure of evidence, New trial. Due Process of Law, Disclosure of evidence. Evidence, Disclosure of evidence, Certificate of drug analysis. Indictments found and returned in the Superior Court Department on February 1, 2008. A motion for a new trial, filed on December 17, 2012, was heard by Paul A. Chernoff, J., special judicial magistrate, and an order affirming the proposed order of the magistrate was entered by Thomas F. McGuire, Jr. Thomas C. Foley for the defendant. Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth. WOLOHOJIAN, J. In 2009, a jury convicted the defendant of various drug offenses.[1] The drugs at issue were tested and analyzed at the William A. Hinton State Laboratory Institute (Hinton lab or lab), but neither the misconduct by chemist Annie Dookhan nor the problems at that lab were discovered before trial. Once those issues came to light, the defendant moved for a new trial. A special magistrate[2] conducted an extensive evidentiary hearing and made detailed findings acknowledging the severity and the scope of Dookhan’s misconduct and the irregularities at the Hinton lab. Nonetheless, the special magistrate denied the defendant’s motion for new trial because Dookhan had not participated in testing, analyzing, or reviewing the drugs at issue in this case and there was no evidence to show or to suggest that the problems at the lab in any way affected the accuracy or the reliability of the testing of the drugs the defendant was accused of possessing. We affirm. The details of Dookhan’s egregious misconduct can be found in Commonwealth v. Scott, 467 Mass. 336, 338-342 (2014), and we accordingly do not repeat them here. In Scott, supra at 338, the Supreme Judicial Court held that a defendant seeking to withdraw a guilty plea after learning of Dookhan’s misconduct is entitled to a conclusive presumption of egregious government misconduct where Dookhan signed the certificate of drug analysis as primary or secondary chemist. The presumption of egregious government misconduct does not entitle a defendant to relief unless he also demonstrates a “nexus between the […]