Commonwealth v. Antone (Lawyers Weekly No. 11-002-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 14-P-1802 Appeals Court COMMONWEALTH vs. DANNY ANTONE. No. 14-P-1802. Bristol. February 5, 2016. – January 4, 2017. Present: Green, Hanlon, & Henry, JJ. Controlled Substances. Practice, Criminal, New trial, Plea, Conduct of government agents, Disclosure of evidence. Evidence, Certificate of drug analysis, Exculpatory. Indictments found and returned in the Superior Court Department on November 4, 2010. A motion to vacate a guilty plea and for a new trial, filed on October 18, 2012, was heard by Wendie Gershengorn, J., special judicial magistrate, and an order affirming the proposed order of the special judicial magistrate was entered by Renee P. Dupuis, J. Sharon L. Sullivan-Puccini for the defendant. David A. Wittenberg, Assistant District Attorney, for the Commonwealth. HENRY, J. The defendant, Danny Antone, appeals from an order denying his motion to vacate his guilty plea to the offense of trafficking in cocaine (one hundred grams or more), G. L. c. 94C, § 32E(b)(3). His motion arises from the misconduct of Annie Dookhan, a chemist who was employed at the William A. Hinton State Laboratory Institute (Hinton lab or lab). See Commonwealth v. Scott, 467 Mass. 336, 337-342, 349-350 (2014) (describing Dookhan’s misconduct). On appeal, the defendant argues that his motion should have been allowed because (1) there was a reasonable probability that he would not have pleaded guilty if he had known of Dookhan’s misconduct, (2) the Commonwealth failed to provide exculpatory evidence concerning Dookhan’s misconduct, and (3) Dookhan’s misconduct constitutes newly discovered evidence. We affirm. Background. 1. Facts pertaining to plea.[1] As the result of information provided by a confidential informant (CI) in the summer of 2010, the New Bedford police began to conduct surveillance of the defendant. On one occasion they observed him make a variety of maneuvers while driving his vehicle that were consistent with someone conducting “counter surveillance.” The police arranged for the CI to make two controlled purchases of cocaine from the defendant.[2] The police field test of the substance in each controlled purchase was positive for cocaine. Based on this information, the police obtained search warrants on August 13, 2010, for the defendant’s home and vehicle. In preparation for execution of the warrants, the police began surveillance of the defendant’s home on August 18, 2010. At approximately 9:00 P.M., they observed him depart in his vehicle. […]