Commonwealth v. Cotto , 471 Mass. 97 ( 2015 )

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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.
2
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
1
Sonja Farak was a chemist for the Department of Public
Health from July, 2003, until January 19, 2013. During the
first year of her employment, she worked at the William A.
Hinton State Laboratory Institute in the Jamaica Plain section
of Boston. After that, Farak worked at the Department of Public
Health's State Laboratory Institute in Amherst (Amherst drug
lab).
2
With respect to the trafficking charge, the defendant was
sentenced to from five years to five years and one day in State
prison. With respect to the ammunition charge, he was sentenced
to one year in a house of correction, to be served concurrently
with the sentence on the trafficking charge.
3
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 the Amherst drug
lab, that her misconduct was widespread and egregious, and that
such misconduct antedated his guilty pleas. As a consequence,
the defendant asserted that because his guilty pleas were based,
in part, on an assumption that the drug certificates were
truthful and accurate, his decision to plead guilty was not
knowing, voluntary, and intelligent. The defendant further
claimed that Farak's misconduct constituted newly discovered
evidence that would have had a significant impact on his
decision to plead guilty and cast serious doubt on the justice
of his convictions.3 On October 30, 2013, a Superior Court judge
3
In an affidavit dated April 19, 2013, the defendant's
trial counsel stated that, at the time she advised her client to
plead guilty, she was not aware of Farak's misconduct. If she
had been aware of such misconduct prior to the defendant's
pleas, she would not have advised him to plead guilty. Instead,
she would have advised the defendant to either negotiate for a
better plea offer or go to trial.
4
denied the defendant's motion. Farak pleaded guilty to all ten
charges on January 6, 2014.
The defendant appealed, and we granted his application for
direct appellate review. The defendant now contends that the
judge abused his discretion by (1) failing to afford the
defendant the benefit of the conclusive presumption articulated
in Commonwealth v. Scott, 467 Mass. 336, 352-353 (2014), that
egregious misconduct by Farak occurred in the defendant's case;
(2) ignoring direct and circumstantial evidence of misconduct by
Farak that antedated the entry of the defendant's guilty pleas;
and (3) finding that the defendant would have pleaded guilty
notwithstanding Farak's misconduct. The defendant also claims
that the judge erred by quashing a subpoena that had been issued
to Farak's spouse, Nikki Lee, where she was a necessary witness
for the defense. For the reasons set forth below, we vacate the
order denying the defendant's motion to withdraw his guilty
pleas, and we conclude that, given the Commonwealth's failure to
thoroughly investigate the matter of Farak's misconduct at the
Amherst drug lab, the defendant is entitled to a measure of
relief, as will be described in detail.4 We remand the case for
further proceedings in accordance with this opinion.
4
We acknowledge the amicus briefs submitted by Rafael
Rodriguez and Deon Charles, defendants in two other Amherst drug
lab cases whose motions to withdraw their respective guilty
pleas were denied. See note 5, infra. Their appeals have been
5
1. Background on the Amherst drug lab.5 The Amherst drug
lab began operation in 1987 with the primary function of
analyzing suspected controlled substances for law enforcement
agencies involved in the prosecution of criminal cases in
western Massachusetts.6 As of January, 2013, there were four
employees at the facility, and each one could access the
evidence safe by means of an electronic card or a key. On
January 17, 2013, the evidence officer at the Amherst drug lab,
Sharon Salem, was attempting to match drug certificates with the
corresponding samples when she realized that she was missing the
samples in two cases. Records reflected that Farak had
completed testing on those samples earlier in the month and had
confirmed that the substances were cocaine. On January 18,
stayed by the Appeals Court pending our decision in the present
case.
5
In the fall of 2013, the judge in the present case
conducted an evidentiary hearing on postconviction motions filed
by fifteen defendants who claimed that alleged criminal conduct
by Farak rendered their guilty pleas to various drug charges
unknowing, unintelligent, and involuntary, and that this newly
discovered evidence cast doubt on the justice of their
convictions. The evidence presented at the hearing was limited
to (1) the timing and scope of Farak's alleged criminal conduct;
(2) the timing and scope of conduct underlying negative findings
in an October 10, 2012, quality assurance audit of the Amherst
drug lab by the State police (see note 11, infra); and (3) the
extent to which Farak's alleged criminal conduct and the audit
findings might relate to the testing of drug evidence in the
fifteen defendants' cases.
6
On July 1, 2012, the responsibility for oversight of the
Amherst drug lab was transferred from the Department of Public
Health to the State police.
6
Salem reported the missing evidence to her supervisor, James
Hanchett, who searched Farak's work station and discovered,
among other items, a manila envelope containing the packaging
for the two missing samples, which had been cut open. Testing
of the substances in the packaging was negative for cocaine,
contrary to Farak's earlier analysis.
Hanchett immediately contacted the State police, who shut
down the Amherst drug lab and began an investigation. They
discovered two additional case envelopes in a temporary storage
locker used by Farak, a location where evidence was not allowed
to be stored overnight. Although each envelope was supposed to
contain suspected cocaine, neither did, and a search for those
substances was unsuccessful. Investigators also interviewed
Farak's colleagues who said that, beginning in September, 2012,
they observed a change in Farak's behavior, including frequent
unexplained absences from her work station and a decrease in
productivity.
On January 19, 2013, the State police forensic services
conducted an inventory of all drug evidence at the Amherst drug
lab. Only the four above-described samples were missing. A
similar inventory conducted approximately four months earlier
had not uncovered any missing samples. Also on January 19, the
State police searched Farak's vehicle pursuant to a warrant and
seized, among other items, manila envelopes bearing case
7
numbers, paperwork relating to the Amherst drug lab, a plastic
bag containing a white powdery substance and a brown tar-like
substance, a plastic bag containing assorted pills, and
photocopies of three newspaper articles about individuals who
had been investigated, charged, or sentenced for the illegal
possession or theft of controlled substances.7 Attached to one
of the articles was a handwritten note stating, "Thank [G]od I'm
not a law enforcement officer" (emphasis in original).
Farak was arrested at her home that same day. She was
charged by criminal complaint in the District Court with
unlawful possession of a class A substance (heroin), unlawful
possession of a class B substance (cocaine), and two counts of
tampering with evidence. On January 25, 2013, the State police
searched a tote bag that had been seized from Farak's work
station pursuant to a warrant. The bag contained a variety of
substances that could be used to dilute or replace cocaine
(soap, baking soda, soy candle flakes, and oven-baked clay),
7
One of the newspaper articles, dated March 29, 2011, had
been printed from a computer on September 20, 2011, and was a
story about the illegal possession of steroids by law
enforcement officers. A second newspaper article, dated
October 25, 2011, had been printed from a computer on
October 28, 2011, and was a story about a Pittsfield pharmacist
being sentenced to three years in prison for stealing OxyContin
from her workplace. The article mentioned that the pharmacist
had replaced the OxyContin with other medications. A third
newspaper article, dated December 2, 2011, had been printed from
a computer on December 6, 2011, and was a story about a former
San Francisco police department drug laboratory technician who
stole cocaine from her workplace.
8
other items commonly used in the drug trade (plastic laboratory
dishes, waxed paper, and fragments of copper wire), and several
evidence bags that had been cut open. The evidence bags bore
diverse dates from December 16, 2012, to January 6, 2013.
On April 1, 2013, a State grand jury indicted Farak on four
counts of tampering with evidence at the Amherst drug lab, four
counts of stealing cocaine from that facility, and two counts of
unlawful possession of cocaine. While proceedings were ongoing
in the Superior Court with respect to these charges, four
additional cases surfaced in which it seemed, based on
retesting, that Farak may have removed cocaine from samples that
were submitted to the Amherst drug lab for analysis between June
15 and October 10, 2012, and replaced at least some of the
cocaine with a counterfeit substance. It is not clear from the
record why this particular evidence was selected for retesting.
Nonetheless, it does appear that no charges were brought against
Farak with respect to these four additional cases. On January
6, 2014, Farak pleaded guilty to all ten charges.8
8
With respect to the first count of tampering with evidence
(Count I), Farak was sentenced to two and one-half years in a
house of correction, with eighteen months to serve, and the
balance suspended with probation for five years, with special
conditions. Farak was given the same sentence on the second and
third counts of tampering with evidence, as well as on three
counts of theft of a controlled substance, each sentence to run
concurrently with the sentence on Count I. With respect to each
of the two counts of unlawful possession of a class B substance,
Farak was sentenced to serve one year in a house of correction,
each sentence to run concurrently with the sentence on Count I.
9
2. Factual and procedural history. In the spring of 2007,
Springfield police Officer Thomas Nehmer discovered, through the
use of a confidential informant, that the defendant was selling
cocaine. On May 4, 2007, based on information received from the
informant regarding the defendant's involvement in an upcoming
drug deal, the police established surveillance at the time and
place of the transaction. When the defendant arrived as
predicted, he was secured by police and found to be in
possession of two cellular telephones, ninety-one dollars, and
what appeared to be approximately eight grams of cocaine. He
was placed under arrest and transported to the police station.
Following a waiver of his Miranda rights, the defendant told
officers that in his bedroom at his residence were packaging
materials, scales, and approximately thirty grams of cocaine.
Officer Nehmer applied for and was granted a search warrant.
When officers searched the defendant's residence, they
discovered fifty-eight rounds of .22 caliber ammunition, scales,
cutting agents, and two bags containing substances that appeared
to be cocaine and weighed approximately forty-four grams. The
substances were tested by Farak at the Amherst drug lab on
With respect to the fourth count of tampering with evidence and
the fourth count of theft of a controlled substance, Farak was
sentenced to five years' probation, to run concurrently with her
probation on the other charges.
10
June 8, 2007. According to the drug certificates that she
signed, each substance tested positive for cocaine.9
On April 13, 2009, after engaging in a thorough colloquy
with the judge and before Farak's misconduct had become known,
the defendant pleaded guilty to trafficking in cocaine (fourteen
to twenty-eight grams), and unlawful possession of ammunition.
The bases for his subsequent motion to withdraw his guilty pleas
were twofold. First, the alleged criminal conduct by Farak at
the Amherst drug lab rendered his guilty pleas unknowing,
unintelligent, and involuntary. Second, such misconduct
constituted newly discovered evidence that cast real doubt on
the justice of his convictions. The judge considered each
contention in turn.
In deciding whether the defendant's pleas were knowing,
voluntary, and intelligent, the judge relied on the analysis
articulated in Ferrara v. United States, 456 F.3d 278, 290 (1st
Cir. 2006).10 He stated that a defendant seeking to set aside a
guilty plea as involuntary must show that (1) the government or
its agents committed some egregiously impermissible conduct that
9
According to the Commonwealth, the drugs seized from the
defendant have been destroyed.
10
At the time the judge ruled on the defendant's motion to
withdraw his guilty pleas, he did not have the benefit of our
decision in Commonwealth v. Scott, 467 Mass. 336 (2014), which
also relied on the analysis set forth in Ferrara v. United
States, 456 F.3d 278, 290 (1st Cir. 2006).
11
antedated the entry of the plea, and (2) the misconduct was
material to the defendant's choice to plead guilty. See id.With regard to the first part of the inquiry, the judge
concluded that, given Farak's role at the Amherst drug lab, she
must be deemed to be an agent of the Commonwealth. Next, the
judge considered whether Farak's alleged misconduct antedated
the defendant's guilty pleas on April 13, 2009. The judge said
that, although there was "powerful evidence" that Farak had
engaged in egregiously impermissible conduct by stealing cocaine
and replacing it with other substances, he was not persuaded
that she was doing so at the time of the defendant's guilty
pleas. Therefore, the defendant failed to establish that
Farak's misconduct antedated his guilty pleas. Further, in the
judge's view, the negative findings made during an October,
2012, quality assurance audit of the Amherst drug lab were
disconcerting, but there was no evidence that these general
deficiencies had any bearing on the testing performed in the
defendant's case.11 As such, the findings of the audit did not
11
On October 10, 2012, the State police conducted a quality
assurance audit of the Amherst drug lab. It was a routine
matter in the sense that quality assurance audits are conducted
at all State police laboratories every year, but this facility
never had been audited. See note 6, supra. Among other
purposes, the audit was designed to determine what steps the
Amherst drug lab would have to take in order to meet
accreditation standards required by the American Society of
Crime Lab Directors/Laboratory Accreditation Board. The Amherst
drug lab had not been accredited since it began operation in
1987 and, in fact, all State police laboratories operated
12
amount to the kind of egregiously impermissible government
conduct contemplated by the Ferrara case.
The judge then considered the second part of the Ferrara
inquiry, namely whether Farak's misconduct would have been
material to the defendant's decision to plead guilty. The judge
stated that there was no evidence that the test results in this
case were inaccurate, or that Farak was involved in any
misconduct at the time of the defendant's guilty pleas.
Moreover, he continued, there were good reasons for the
defendant to accept the plea agreement. Given the strength of
the Commonwealth's case (including the defendant's own
incriminating statements), the significant benefit the defendant
received from the plea agreement, and the absence of any
without accreditation prior to 2002. The negative findings in
the October, 2012, audit of the Amherst drug lab included the
following: chain of custody with respect to evidence kept in
short-term overnight storage was not documented appropriately,
and evidence retained in such storage was not sealed properly;
evidence seals were initialed, but not dated, by the chemists;
variances between weights of substances on arrival and weights
at testing were not documented; and inventory discrepancies were
not verified. In addition, so-called "reagents" were not
regularly tested, and known drug standards were not verified on
a daily basis. The audit team recommended steps to remediate
each of these problems, and personnel at the Amherst drug lab
took measures to address the negative findings. Cathleen
Morrison, a member of the audit team and an author of the audit
report, testified at the evidentiary hearing, see note 5, supra,
that the audit did not raise any questions regarding the
reliability of the testing performed at the Amherst drug lab.
The judge concluded that, although the negative findings in the
audit "reflect[ed] a lax atmosphere in which theft of controlled
substances could go undetected for a period of time, the audit
did not reveal any unreliable testing."
13
evidence that Farak's misconduct affected the drug testing in
the defendant's case, the judge concluded that Farak's
misconduct would not have been material to the defendant's
decision to plead guilty, even if such misconduct had antedated
the defendant's pleas. The judge also found that the negative
audit of the Amherst drug lab failed to satisfy the threshold of
materiality required to invalidate the defendant's guilty pleas.
Accordingly, based on the totality of the circumstances, the
judge concluded that the defendant had failed to establish that
his guilty pleas were not knowingly, intelligently, and
voluntarily made.
Finally, the judge considered whether Farak's misconduct at
the Amherst drug lab constituted newly discovered exculpatory
evidence that cast real doubt on the justice of the defendant's
convictions. The judge first determined that there was no
evidence that the defendant or his attorney was aware of Farak's
misconduct or the negative audit, or that either reasonably
could have been discovered at the time of the defendant's pleas.
Therefore, the judge continued, the evidence of Farak's
misconduct, in particular, and the administrative problems at
the Amherst drug lab, in general, qualified as "newly
discovered." However, for all of the reasons he already had
articulated, the judge stated that this newly discovered
evidence was "not sufficiently weighty, potent, or pertinent to
14
the fundamental issues of this case to be worthy of
consideration at a new trial."
3. Standard of review. A motion to withdraw a guilty plea
is treated as a motion for a new trial pursuant to Mass. R.
Crim. P. 30 (b). Commonwealth v. Furr, 454 Mass. 101, 106
(2009). "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 new trial is thus committed to
the sound discretion of the judge." Scott, 467 Mass. at 344.
We review the allowance or denial of a motion to withdraw a
guilty plea to determine whether the judge abused that
discretion or committed a significant error of law. Id. We
accept the judge's findings of fact if they are supported by the
evidence, because the judge who heard the witnesses testify is
the "final arbiter [on] matters of credibility." Id., quoting
Commonwealth v. Schand, 420 Mass. 783, 787 (1995).
4. Discussion. Due process requires that a plea of guilty
be accepted only where "the contemporaneous record contains an
affirmative showing that the defendant's plea was intelligently
and voluntarily made." Furr, 454 Mass. at 106, citing Boykin v.
Alabama, 395 U.S. 238 (1969), and Commonwealth v. Foster, 368
Mass. 100, 102 (1975). "A guilty plea is intelligent if it is
tendered with knowledge of the elements of the charges against
the defendant and the procedural protections waived by entry of
15
a guilty plea." Scott, 467 Mass. at 345. See Commonwealth v.
Duest, 30 Mass. App. Ct. 623, 630-631 (1991). "A guilty plea is
voluntary so long as it is tendered free from coercion, duress,
or improper inducements." Scott, supra. Typically, a motion to
withdraw a guilty plea will allege a facial defect in the plea
procedures, but a guilty plea "also may be vacated as
involuntary because of external circumstances or information
that later comes to light." Id., and cases cited.
We begin by reviewing the framework for analyzing the
defendant's motion to withdraw his guilty pleas. In Ferrara,
456 F.3d at 280, 284, 290-293, the United States Court of
Appeals for the First Circuit analyzed whether blatant
misconduct by the government, discovered more than ten years
after entry of the defendant's guilty plea, could render such
plea involuntary. The prosecutor in Ferrara deliberately
manipulated a key witness, failed to disclose exculpatory
evidence, and affirmatively misrepresented the nature of the
witness's planned testimony. Id. at 291-293. The court
concluded that when a defendant seeks to vacate a guilty plea as
a result of underlying government misconduct, rather than a
defect in the plea procedures, the defendant must show both that
"egregiously impermissible conduct . . . by government agents
. . . antedated the entry of his plea," and that "the misconduct
influenced his decision to plead guilty or, put another way,
16
that it was material to that choice." Id. at 290. Relying on
Ferrara, this court articulated in Scott, 467 Mass. at 346-358,
a two-prong framework for analyzing a defendant's motion to
withdraw his guilty plea under Mass. R. Crim. P. 30 (b) in a
case involving the misconduct of Annie Dookhan, a chemist at the
William A. Hinton State Laboratory Institute's forensic drug
laboratory (Hinton drug lab) from 2003 to 2012. 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. Id. at 347-354. Under the second prong of the analysis,
a defendant must demonstrate a reasonable probability that he or
she would not have pleaded guilty had he or she known of the
government misconduct. Id. at 354-358.
We recognized in Scott that, given the breadth and duration
of Dookhan's malfeasance, it might be impossible for a defendant
to show the required nexus between the government misconduct and
the defendant's own case. Scott, 467 Mass. at 351-352.
Dookhan's "insidious" misconduct, "which belie[d]
reconstruction, [was] a lapse of systemic magnitude in the
criminal justice system." Id. at 352. Consequently, we
established a special evidentiary rule whereby a defendant
seeking to vacate a guilty plea under rule 30 (b) as a result of
the revelation of Dookhan's misconduct, and proffering a drug
17
certificate from the defendant's case signed by Dookhan on the
line labeled "Assistant Analyst," would be entitled to "a
conclusive presumption that egregious government misconduct
occurred in the defendant's case." Id. Application of this
conclusive presumption in a particular case meant that a
defendant's evidentiary burden to establish each element of the
first prong of the Ferrara-Scott framework was satisfied. Id.
at 353-354. We emphasized in Scott that this special
evidentiary rule is unique in that it is "a remedy dictated by
the particular circumstances surrounding Dookhan's misconduct as
a chemist at the Hinton drug lab 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." Id. Further, we stated that "[s]hould
the Ferrara analysis be applied in the case of a motion for a
new trial under Mass. R. Crim. P. 30 (b) that does not arise
from the investigation of Dookhan, the defendant will have the
burden to establish each element of the first prong of Ferrara,
and the adequacy of the defendant's showing will be committed to
the sound discretion of the motion judge" (emphasis added). Id.
at 354.
a. Prong one of the Ferrara-Scott analysis: egregious
misconduct by the government in the defendant's case. In the
present appeal, the defendant contends that Farak's misconduct
18
at the Amherst drug lab was egregious, and that Farak was a
government agent such that her misconduct is attributable to the
Commonwealth. Moreover, in the defendant's view, Farak's
misconduct was systemic in magnitude. As a consequence, the
defendant argues, he was entitled to the conclusive presumption
articulated in Scott, 467 Mass. at 352-353, and, therefore, he
was not required to prove that such misconduct occurred in his
own case. The defendant asserts that even if this court does
not apply the conclusive presumption, it still should determine
that, because there was direct and circumstantial evidence
suggesting that Farak's misconduct antedated the entry of his
guilty pleas, misconduct must have occurred in his case. Given
all of these circumstances, the defendant contends that the
discovery of Farak's egregious misconduct after he had tendered
his guilty pleas rendered those pleas unknowing, unintelligent,
and involuntary. As such, the defendant continues, the judge
abused his discretion in denying the defendant's motion to
withdraw his guilty pleas.12 We agree with the defendant that
12
In Scott, the defendant argued that "relief [might] be
available to him under Brady v. Maryland, 373 U.S. 83, 87
(1963), as a result of the prosecution's failure to disclose the
potentially exculpatory evidence of Dookhan's misconduct to the
defendant prior to his guilty plea." Scott, 467 Mass. at 346
n.5. In the present case, the defendant has not raised such an
argument, presumably because evidence of misconduct by Farak had
not yet come to light at the time the defendant pleaded guilty
on April 13, 2009. As such, there was nothing for the
Commonwealth to disclose.
19
Farak's misconduct was egregious and that it is attributable to
the Commonwealth. However, based on the evidence of her
misconduct that has been uncovered thus far, we disagree with
the defendant that he is entitled to the conclusive presumption
articulated in Scott, or, alternatively, that he has shown that
Farak's malfeasance antedated the entry of his guilty pleas.
Nonetheless, given the absence of a thorough investigation into
the matter by the Commonwealth, and the cloud that overshadows
the integrity of drug analyses performed by Farak at the Amherst
drug lab, we conclude that the defendant is entitled to a
measure of relief, as will be described. We turn to the
Ferrara-Scott framework.
i. Egregious misconduct. On January 6, 2014, Farak
pleaded guilty to, among other offenses, four counts of
tampering with evidence at the Amherst drug lab and four counts
of stealing cocaine from that facility. There is no dispute
between the parties that this constituted "egregious misconduct"
by Farak. She was entrusted with analyzing purported drug
samples, signing drug certificates that identified and set forth
the precise weight of each sample, and testifying to the results
of her analyses. By tampering with evidence, Farak cast serious
doubt on the integrity of this entire process. Her misconduct
could render a defendant's guilty plea involuntary by wholly
undermining the evidentiary foundation of the Commonwealth's
20
case. We conclude that Farak's misconduct constitutes the type
of egregious misconduct that satisfies the first element of the
first prong of the Ferrara-Scott analysis. See Scott, 467 Mass.
at 347-348. See also Ferrara, 456 F.3d at 290-293.
ii. By the government. The defendant contends that
because Farak was a government agent, her misconduct is
attributable to the Commonwealth. In contrast, the Commonwealth
argues that Farak's misconduct, while egregious, was an
individual unlawful scheme and, as such, should not be
attributable to the Commonwealth. We agree with the defendant's
position.
In Scott, 467 Mass. at 348-350, we considered various
circumstances where actions by a range of government agents
might constitute misconduct "by the government" that could
render a defendant's guilty plea involuntary. See, e.g., United
States v. Fisher, 711 F.3d 460, 467 (4th Cir. 2013) (law
enforcement officer's conduct in lying in search warrant
affidavit in defendant's case, regardless of prosecutor's lack
of actual knowledge of officer's wrongdoing, constituted
impermissible government conduct). In the related context of a
prosecutor's duty to disclose exculpatory evidence to the
defense, we pointed out that, generally speaking, "the
prosecutor's duty does not extend beyond information held by
'agents of the prosecution team,'" Scott, supra at 349, quoting
21
Commonwealth v. Thomas, 451 Mass. 451, 454 (2008), but that
"individuals other than prosecutors and police may be considered
agents of the prosecution team." Scott, supra. See
Commonwealth v. Martin, 427 Mass. 816, 824 (1998) (prosecutor's
duty to disclose exculpatory evidence extends to information in
possession of chemist at State police crime laboratory who "has
participated in the investigation or evaluation of the case and
has reported to the prosecutor's office concerning the case");
Commonwealth v. Woodward, 427 Mass. 659, 679 (1998) (medical
examiner considered to be agent of Commonwealth). We concluded
in Scott that Dookhan, in her role as a chemist at the Hinton
drug lab, was an agent of the Commonwealth whose misconduct was
attributable to the government for the limited purposes of the
Ferrara analysis. Scott, 467 Mass. at 349-350. Significantly,
it appeared from the record that Dookhan had engaged in
egregious misconduct "to further what she perceived to be the
mission of the Commonwealth" -- getting criminals off the
streets -- and not to further her own "individual unlawful
scheme." Id. at 350, quoting Commonwealth v. Waters, 410 Mass.
224, 230 (1991). Contrast Commonwealth v. Campiti, 41 Mass.
App. Ct. 43, 65-66 (1996) (defendant not entitled to new trial
where State police officer involved in investigation of
defendant embezzled money from district attorney's office to
22
support gambling habit, but where such activity did not taint
voluminous evidence against defendant).
Farak, like Dookhan, was an agent of the prosecution team,
given that, where she was the analyst for a purported drug
sample recovered from a defendant, she "participated in the
investigation or evaluation of the case" and "reported to the
prosecutor's office concerning the case." Scott, supra at 349,
quoting Martin, 427 Mass. at 824. In addition, Farak was
"expected to testify as [an] expert witness[] regarding the
testing of samples in various criminal prosecutions." Scott,
supra at 350. Admittedly, it appears from the record that Farak
was tampering with evidence at the Amherst drug lab in order to
support her own cocaine habit. Nonetheless, the effect of her
misconduct was to raise serious questions about the integrity of
her work on behalf of the Commonwealth. With respect to at
least eight known cases, it seems apparent that Farak's actions
tainted the drug analysis process which, in turn, raises
concerns about the reliability of her analyses in other cases
where she was the assistant analyst. Such malfeasance goes
right to the heart of the Commonwealth's ability to convict a
defendant in a drug case and, therefore, is directly related to
"the Commonwealth's interest in law enforcement." Waters, 410
Mass. at 230. Farak's misconduct was not merely an "individual
unlawful scheme," id., and, as such, is attributable to the
23
Commonwealth. The defendant has satisfied the second element of
the first prong of the Ferrara-Scott analysis. See Scott, 467
Mass. at 348-350. See also Ferrara, 456 F.3d at 290-293.
iii. In the defendant's case. Finally, the third element
of the first prong of the Ferrara-Scott analysis requires the
defendant to show that egregious misconduct by Farak antedated
the entry of his guilty pleas and occurred in his own case. See
Scott, supra at 350-354. See also Ferrara, supra at 290. The
defendant asserts that he was entitled to the conclusive
presumption articulated in Scott, supra at 352-353, and,
therefore, he was not required to prove that Farak's misconduct
occurred in his case. Further, the defendant continues, even if
this court does not apply the conclusive presumption, it still
should determine that, because there was both direct and
circumstantial evidence suggesting that Farak's misconduct
antedated the entry of his guilty pleas, misconduct must have
occurred in his case. We conclude that the evidence on which
the defendant relies is not sufficient, at this juncture, to
establish either that Farak's misconduct constituted a systemic
problem warranting application of the conclusive presumption, or
that her misconduct antedated the entry of the defendant's
guilty pleas.
In Scott, we determined that "furnishing a drug certificate
signed by Dookhan as a primary or secondary chemist in the
24
defendant's case [was] sufficient to establish the requisite
nexus between the defendant's case and Dookhan's misconduct."
Scott, 467 Mass. at 354. Our bases for establishing a
conclusive presumption that "egregious government misconduct
occurred in the defendant's case" were our reasonable certainty
that Dookhan's misconduct "touched a great number of cases," and
that it was a "lapse of systemic magnitude in the criminal
justice system" that "belie[d] reconstruction." Id. at 352. In
the present case, no such reasonable certainty exists.
Unlike the circumstances in Scott where the State police
detective unit of the Attorney General's office conducted a
broad formal investigation into Dookhan and her practices at the
Hinton drug lab, see Scott, 467 Mass. at 339, the Commonwealth's
investigation into the timing and scope of Farak's misconduct
has been cursory at best. Nonetheless, based on the record
before us, only eight cases thus far have surfaced in which it
appears that Farak tampered with evidence at the Amherst drug
lab, beginning perhaps in the summer of 201213 and continuing
13
The motion judge was not persuaded that it was reasonable
to infer from Farak's possession of the newspaper articles that
were printed in the fall of 2011, see note 7, supra, that she
was stealing controlled substances at that time. We conclude
that the judge did not abuse his discretion in making this
determination.
25
until January, 2013.14 It goes without saying that eight cases
are eight cases too many. However, the scope of Farak's
misconduct does not appear to be, at this point in time,
comparable to the enormity of Dookhan's misconduct at the Hinton
drug lab. Among other wrongdoing, Dookhan admitted to "dry
labbing," contaminating drug samples (including converting
negative samples into positive samples), removing drug samples
from the lab's evidence locker in violation of protocol, failing
to verify the proper functioning of lab equipment, and
falsifying reports to hide her misconduct. See Scott, supra at
339-341. In addition, Dookhan "acknowledged to investigators
that she [might] not be able to identify those cases in which
she tested the samples properly and those in which she did not,"
id. at 339, rendering it virtually impossible to ascertain the
full extent of Dookhan's misconduct during her tenure at the
Hinton drug lab, which spanned approximately ten years. There
is no indication on the record before us that Farak's misconduct
presents a comparable situation. Therefore, the defendant is
not entitled to the benefit of the conclusive presumption
articulated in Scott, supra at 352-353, that egregious
misconduct by Farak occurred in his case.
14
As far as we can tell, Farak has not provided any details
concerning the timing and scope of her misconduct, apart from
pleading guilty to the ten indictments.
26
That said, the systemic nature of Dookhan's misconduct only
came to light following a thorough investigation of the Hinton
drug lab by the State police detective unit of the Attorney
General's office. See Scott, 467 Mass. at 339-341. As far as
we are able to discern, no such investigation of the Amherst
drug lab has occurred. In another case decided today concerning
Farak's misconduct at that facility, Commonwealth v. Ware,
ante , (2015), we stated that "the Commonwealth ha[s] a
duty to conduct a thorough investigation to determine the nature
and extent of [Farak's] misconduct, and its effect both on
pending cases and on cases in which defendants already had been
convicted of crimes involving controlled substances that Farak
had analyzed." The Commonwealth's obligation to conduct an
investigation is premised on a prosecutor's "duty to learn of
and disclose to a defendant any exculpatory evidence that is
'held by agents of the prosecution team,'" who include chemists
working in State drug laboratories. Id., quoting Commonwealth
v. Beal, 429 Mass. 530, 532 (1999). It is incumbent on the
Commonwealth to perform this duty in a timely fashion. The
burden of ascertaining whether Farak's misconduct at the Amherst
drug lab has created a problem of systemic proportions is not
one that should be shouldered by defendants in drug cases. See
generally Scott, supra at 353. At the same time, given what we
know, we have no basis for concluding in the present case that
27
Farak's misconduct is a "lapse of systemic magnitude in the
criminal justice system." Id. at 352.
In a related vein, when considering the nexus between the
government misconduct and the defendant's case, we agree with
the motion judge that, although there is compelling evidence
that Farak was stealing cocaine and replacing it with
counterfeit substances, the defendant has not shown that Farak's
misconduct antedated the entry of his guilty pleas and,
therefore, must have occurred in his case. Farak analyzed the
drugs in the defendant's case on June 8, 2007. The defendant
pleaded guilty to trafficking in cocaine (fourteen to twenty-
eight grams) and unlawful possession of ammunition on April 13,
2009. Farak was arrested on January 19, 2013, for misconduct
that was alleged to have occurred the previous day. The judge
stated that powerful circumstantial evidence suggested that this
was not the first time that Farak had tampered with drug samples
at the Amherst drug lab. The judge pointed out that the
retesting of a small number of drug samples that originally had
been analyzed by Farak indicated that she was tampering with
evidence during the summer of 2012. Moreover, during the fall
of 2012, Farak's coworkers began to observe a change in her
behavior, including frequent unexplained absences from her work
station and a decrease in productivity. From these facts and
all of the physical evidence seized in connection with the
28
criminal investigation of Farak, the judge concluded that
Farak's misconduct postdated the defendant's guilty pleas by
almost three years.
The defendant contends that the judge abused his discretion
by not considering "strong circumstantial evidence of
malfeasance" by Farak dating back to the start of her tenure as
an analyst, suggesting a prolonged period of wrongdoing. The
defendant posits that Farak must have engaged in misconduct
while she was working at the Hinton drug lab from the summer of
2003 until the summer of 2004, see note 1, supra, because her
high volume of drug testing rivaled that of Dookhan, who
admitted to "dry labbing." The defendant has offered no
supporting evidence to substantiate this claim, and, in our
view, it is wholly speculative. With respect to Farak's work at
the Amherst drug lab, her supervisor testified at the
evidentiary hearing, see note 5, supra, that Farak's
productivity was comparable to that of her colleague in the lab.
The defendant also claims that there was evidence that Farak
used cocaine in 2000. Even if that were true, it does not
support an inference that Farak must have been tampering with
evidence in the Amherst drug lab prior to April 13, 2009. We
conclude that the judge did not abuse his discretion in
determining that the defendant failed to show that egregious
29
misconduct by Farak antedated the entry of his guilty pleas and,
therefore, must have occurred in his case.15
Based on the Ferrara-Scott framework for reviewing a
defendant's motion to withdraw his guilty pleas, the defendant
here has not satisfied his burden of establishing each element
of the first prong of the analysis. That said, it is clear from
the record that Farak engaged in egregious misconduct at the
Amherst drug lab, and that any deficiencies in the evidence as
15
The defendant also directs our attention to other
purported evidence of likely tampering that, in his view,
demonstrates that Farak was engaged in misconduct at the Amherst
drug lab long before the summer of 2012. In the so-called Finch
and Espinosa cases, a Springfield police detective on March 17,
2012, submitted suspected Oxycodone pills to the Amherst drug
lab for testing, but, after analysis, Farak concluded that the
pills did not contain any controlled substances. In
Commonwealth vs. Berube, Hampden Super. Ct., No. 2011-00355
(Oct. 30, 2013), a Springfield police officer testified that not
all of the controlled substances presented at the trial were in
the same condition as when the officer had seized them. Farak
analyzed the substances in that case on May 12, 2011.
Similarly, in Commonwealth vs. Carter, Hampden Super. Ct., No.
2010-00115 (Nov. 15, 2013), the evidence presented at the trial
(whitish pills) appeared to be different from the evidence that
was seized by the police (blue pills). Farak analyzed the
substances in that case on December 17, 2009. Finally,
photocopies of three newspaper articles about individuals who
had been investigated, charged, or sentenced for the illegal
possession or theft of controlled substances had been printed
from a computer in the fall of 2011 and were found in Farak's
vehicle. See note 7, supra. Farak tested the substances in the
defendant's case on June 8, 2007. Given that the defendant
pleaded guilty on April 13, 2009, and that all of this purported
evidence relates to activities that occurred thereafter, it does
not support the defendant's contention that Farak's misconduct
antedated the entry of his guilty pleas, which is the relevant
inquiry under the Ferrara-Scott framework. See Scott, 467 Mass.
at 350-354. See also Ferrara, 456 F.3d at 290.
30
to the scope and timing of her misconduct are attributable to
the Commonwealth in light of its failure to conduct a thorough
investigation of the matter. Therefore, "it is incumbent upon
us to exercise our superintendence power to fashion a workable
approach" for giving defendants whose evidence samples were
analyzed by Farak at the Amherst drug lab an opportunity to
discover whether, in fact, their cases were affected by her
misconduct. Scott, 467 Mass. at 352. Clearly, the scope of
Farak's misconduct was wider than the ten charges to which she
pleaded guilty, given that at least four additional cases have
surfaced in which it appears that she tampered with evidence,
but with respect to which no charges were filed.
In the absence of a thorough investigation by the
Commonwealth into Farak's misconduct, we conclude that the
following procedures should be implemented. In cases where a
defendant seeks to vacate a guilty plea under Mass. R. Crim. P.
30 (b) as a result of the revelation of Farak's misconduct at
the Amherst drug lab, where the defendant proffers a drug
certificate from the defendant's case signed by Farak on the
line labeled "Assistant Analyst," and where the drug samples
have not yet been destroyed, the defendant is entitled to retest
those samples. Drug samples that are part of a defendant's case
are "tangible objects" subject to mandatory discovery under
Mass. R. Crim. P. 14 (a) (1) (A) (vii), as amended, 442 Mass.
311518 (2004). See Commonwealth v. Williams, 456 Mass. 857, 870-
871 (2010) ("The Commonwealth's responsibility to provide
discovery to the defendant extends to material in its
possession, custody, or control, and includes information in the
possession of persons who have participated in the investigation
or evaluation of the case and who report to the prosecutor's
office concerning the case"). Cf. Commonwealth v. Mitchell, 444
Mass. 786, 795 (2005) (defendant has "unquestioned right, under
the Sixth Amendment to the United States Constitution and art.
12 of the Massachusetts Declaration of Rights, to obtain
relevant evidence that bears on the question of his guilt or
innocence or which otherwise will help his defense"). By such
retesting, a defendant can ascertain definitively whether Farak
tampered with the drug samples that were used to convict,
thereby establishing the requisite "nexus between the government
misconduct and the defendant's own case."16 Scott, 467 Mass. at
351.
More problematic are those cases, like the present one,
where a defendant seeks to vacate a guilty plea under rule
30 (b) as a result of the revelation of Farak's misconduct, but
the defendant's drug samples have been destroyed. See note 9,
16
General Laws c. 94C, § 47A, requires the Commonwealth to
obtain a court order each and every time it wishes to destroy
narcotics evidence. Trial judges should be very cautious in
allowing motions to destroy such evidence where the narcotics
have been analyzed at the Amherst drug lab.
32
supra. It is imperative that the Commonwealth thoroughly
investigate the timing and scope of Farak's misconduct at the
Amherst drug lab in order to remove the cloud that has been cast
over the integrity of the work performed at that facility, which
has serious implications for the entire criminal justice system.
Within one month of the issuance of this opinion, the
Commonwealth shall notify the judge below whether it intends to
undertake such an investigation. If so, the investigation shall
begin promptly and shall be completed in an expeditious manner.
As just stated, in our view, a thorough and timely
investigation would be the appropriate course to follow in the
circumstances. In the absence of such an investigation,
however, and where an individual defendant's drug samples have
been destroyed, the judge, among other options, may entertain
discovery motions to retest randomly selected drug samples that
were tested by Farak and are still in existence in an effort to
determine whether evidence of tampering can be identified and to
establish the time frame of Farak's misconduct. The results of
the Commonwealth's investigation, or the evidence that can be
gleaned from retesting, will dictate how the judge shall
proceed, and we leave that matter to the judge's discretion.
We reiterate that under the first prong of the Ferrara-
Scott analysis, a defendant must show egregious misconduct by
the government that preceded the entry of the defendant's guilty
33
pleas, and occurred in the defendant's case. See Scott, 467
Mass. at 347-354. See also Ferrara, 456 F.3d at 290. In the
absence of evidence suggesting a problem of systemic magnitude
at the Amherst drug lab, but nonetheless indicating a serious
problem of undefined proportions, we afford the defendant here,
and others in a similar position, the opportunity to show,
through the retesting of drug samples, that Farak's misconduct
preceded the entry of his guilty pleas and occurred in his own
case. Satisfaction of the first prong of the Ferrara-Scott
analysis is not, however, the end of the judge's inquiry
regarding whether to allow the defendant's motion to withdraw
his guilty pleas under Mass. R. Crim. P. 30 (b). We turn now to
the second prong of the Ferrara-Scott analysis.
b. Prong two of the Ferrara-Scott analysis: material
influence on the defendant's decision to plead guilty. The
defendant contends that the judge erred in determining that,
even if Farak's misconduct had antedated the defendant's guilty
pleas, he still would have entered into the plea agreement. In
the defendant's view, the judge wholly minimized the scope of
Farak's misconduct and, as a consequence, improperly assessed
its impact on the defendant's decision whether to plead guilty
or go to trial. The Commonwealth acknowledges that the judge
denied the defendant's motion to withdraw his guilty pleas in
significant part because there was no evidence that the drug
34
analyses in the defendant's case were inaccurate, or that Farak
was involved in misconduct at the time the defendant pleaded
guilty. Notwithstanding evidence of misconduct by Farak, the
Commonwealth contends that there were good reasons for the
defendant to accept the plea agreement, including the strength
of the Commonwealth's case (including the defendant's own
incriminating statements), and the significant concessions made
by the Commonwealth regarding the charges and defendant's
sentence.
In Scott, 467 Mass. at 354, this court pointed out that
satisfaction of the first prong of the Ferrara analysis did not
"relieve the defendant of his burden under the second Ferrara
prong to particularize Dookhan's misconduct to his decision to
tender a guilty plea." See Commonwealth v. Chatman, 466 Mass.
327, 333 (2013) ("The defendant has the burden of proving facts
upon which he relies in support of his motion for a new trial");
Commonwealth v. Lewin, 405 Mass. 566, 584-585 (1989) (charges
against defendant need not be dismissed where police misconduct
was egregious but not prejudicial to fair trial). The same
principle is applicable here with respect to Farak's misconduct.
"[E]vidence of the circumstances surrounding [a] defendant's
decision to tender a guilty plea should be well within the
defendant's reach." Scott, supra at 354 n.11. Accordingly,
under the second prong of the Ferrara-Scott framework, "the
35
defendant must demonstrate a reasonable probability that he
would not have pleaded guilty had he known of [Farak's]
misconduct." Scott, supra at 354-355. See Ferrara, 456 F.3d at
290, 294. This court identified in Scott a number of factors
that might be relevant to a defendant's showing under this
second prong of analysis. See Scott, supra at 355-356. We
emphasized in that case that "the full context of the
defendant's decision to enter a plea agreement will dictate the
assessment of his claim that knowledge of Dookhan's misconduct
would have influenced the defendant's decision to plead guilty."
Id. at 357. See Ferrara, supra at 294. Here, the same analysis
is applicable.
We recognize that the motion judge considered whether the
defendant would have pleaded guilty even if Farak's misconduct
had antedated his guilty pleas. However, the judge did so
without the benefit of our opinion in Scott, and without our
assessment of the potential implications of the Commonwealth's
cursory investigation of Farak's misconduct at the Amherst drug
lab. In significant part, the judge determined that Farak's
misconduct would not have materially influenced the defendant's
decision to plead guilty because there was no evidence that the
drug analyses in the defendant's case were inaccurate, or that
Farak was tampering with evidence at the time the defendant
tendered his guilty pleas. Given the absence of a thorough
36
investigation by the Commonwealth into Farak's misconduct, we
cannot ascertain whether the foundation for the judge's
resolution of this issue is solid. Therefore, following his
resolution of the first prong of the Ferrara-Scott analysis, the
judge should reconsider the second prong of that analysis "to
determine whether, in the totality of the circumstances, the
defendant can demonstrate a reasonable probability that had he
known of [Farak's] misconduct, he would not have [pleaded
guilty] and would have insisted on taking his chances at trial."
Scott, 467 Mass. at 358.
c. Subpoena to establish scope and timing of Farak's
misconduct. In an effort to develop the facts necessary to
establish the timing and scope of Farak's misconduct, the
defendant subpoenaed Farak's spouse, Nikki Lee, to testify at
the evidentiary hearing. See note 5, supra. The defendant
wanted to show that Farak had a history of cocaine use dating
back to 2000, and he sought to question Lee about Farak's drug
use before and during her employment at the Amherst drug lab.
Lee's testimony, in the defendant's view, would be highly
probative of when Farak became motivated to tamper with
evidence. In response, Lee filed a notice of her intent to
invoke her privilege against self-incrimination under the Fifth
Amendment to the United States Constitution and art. 12 of the
Massachusetts Declaration of Rights, as well as spousal
37
privilege under G. L. c. 233, § 20, Second.17 Construing Lee's
notice of her intent to invoke certain privileges as a motion to
quash the subpoena, the judge allowed the motion on the basis of
spousal privilege.
On appeal, the defendant contends that the judge erred in
quashing the subpoena because the evidentiary hearing was not a
criminal proceeding against Farak and, therefore, the spousal
privilege was inapplicable. The propriety of asserting a
testimonial privilege is a matter of statutory interpretation,
presenting a pure question of law that is subject to de novo
review. See Matter of a Grand Jury Subpoena, 447 Mass. 88, 90
(2006). See also Bridgewater State Univ. Found. v. Assessors of
Bridgewater, 463 Mass. 154, 156 (2012). Based on our review, we
agree with the defendant that the spousal privilege was not
applicable in the circumstances of this case. However, we
affirm the judge's decision on other grounds. See Commonwealth
17
In her notice of intent to invoke certain privileges,
Nikki Lee also asked that she be excused from testifying at the
evidentiary hearing because, among other reasons, her sworn
testimony before the State grand jury investigating Farak's
misconduct at the Amherst drug lab already had been provided to
the defendant. Lee testified before the grand jury that she had
tried cocaine, and that she had observed Farak using cocaine in
2000, although not since that time. We note that the spousal
privilege set forth in G. L. c. 233, § 20, Second, cannot be
invoked in proceedings before a grand jury. See Matter of a
Grand Jury Subpoena, 447 Mass. 88, 99 (2006). A spouse who
testifies before a grand jury will not be deemed to have waived
the spousal privilege at a later proceeding because "if there is
no privilege not to testify before a grand jury, then no
privilege has been waived by giving such testimony." Id. at 98.
38
v. Va Meng Joe, 425 Mass. 99, 102 (1997) ("An appellate court is
free to affirm a ruling on grounds different from those relied
on by the motion judge if the correct or preferred basis for
affirmance is supported by the record and the findings").
General Laws c. 233, § 20, Second, provides (with certain
exceptions not relevant here): "[N]either husband nor wife
shall be compelled to testify in the trial of an indictment,
complaint or other criminal proceeding against the other." See
Mass. G. Evid. § 504(a) (2014). "The purpose of the spousal
privilege is to protect the relationship of marriage from the
potential harm of one spouse giving adverse testimony against
the other." Commonwealth v. Szerlong, 457 Mass. 858, 869
(2010), cert. denied, 131 S. Ct. 1494 (2011). See Matter of a
Grand Jury Subpoena, 447 Mass. at 96. Because "[t]estimonial
privileges 'are exceptions to the general duty imposed on all
people to testify,'" they "must be strictly construed." Three
Juveniles v. Commonwealth, 390 Mass. 357, 359 (1983), cert.
denied sub nom. Keefe v. Massachusetts, 465 U.S. 1068 (1984),
quoting Commonwealth v. Corsetti, 387 Mass. 1, 5 (1982). See
Matter of a Grand Jury Subpoena, supra at 90.
When considering the meaning of a testimonial privilege,
"we look first and foremost to the language of the statute as a
whole." Id. Generally speaking, the spousal privilege applies
to testimony that would be given by one spouse in a criminal
39
trial against the other spouse.18 See id. at 90-93. Here, Lee
would not be testifying at a criminal trial against Farak.
Rather, the defendant sought her testimony at an evidentiary
hearing pertaining to postconviction motions filed by fifteen
defendants who claimed that alleged criminal conduct by Farak
rendered their guilty pleas to various drug charges unknowing,
unintelligent, and involuntary. See note 5, supra. Lee's
testimony at such a proceeding cannot be barred by invocation of
the spousal privilege under G. L. c. 233, § 20, Second.
Accordingly, the judge erred in quashing the defendant's
subpoena on this basis.
That said, based on our review of the record, the judge
properly could have quashed the defendant's subpoena on the
basis of Lee's invocation of her privilege against self-
incrimination.19 "The proscription of the Fifth Amendment that
18
In Matter of a Grand Jury Subpoena, 447 Mass. at 99, this
court did not decide "whether, or to what extent, the spousal
privilege may be invoked in pretrial (or posttrial)
proceedings." Given that the evidentiary hearing at issue in
the present case was not a pretrial proceeding against Farak, we
do not consider the scope of the spousal privilege beyond the
plain language of the statute, which resolves the matter at
hand.
19
Lee's testimony before the grand jury did not constitute
a waiver of her privilege against self-incrimination with regard
to the evidentiary hearing. "The waiver [of a testimonial
privilege], once made, waives the privilege only with respect to
the same proceeding; the witness may once again invoke the
privilege in any subsequent proceeding." Commonwealth v. King,
436 Mass. 252, 258 n.6 (2002). See generally Commonwealth v.
40
'[n]o person . . . shall be compelled in any criminal case to be
a witness against himself' may be invoked whenever a witness
reasonably believes that the testimony could be used in a
criminal prosecution or could lead to other evidence that might
be so used." Pixley v. Commonwealth, 453 Mass. 827, 832 (2009),
citing Kastigar v. United States, 406 U.S. 441, 444-445 (1972).
See Commonwealth v. Baker, 348 Mass. 60, 62-63 (1964). Because
the privilege against self-incrimination is a "fundamental
principle" of our judicial system, it "is to be construed
liberally in favor of" the person claiming it. Commonwealth v.
Borans, 388 Mass. 453, 455 (1983). "A witness may refuse to
testify unless it is 'perfectly clear, from a careful
consideration of all the circumstances in the case, that the
witness is mistaken, and that the answer[s] cannot possibly have
such tendency' to incriminate (emphasis in original)."
Commonwealth v. Funches, 379 Mass. 283, 289 (1979), quoting
Hoffman v. United States, 341 U.S. 479, 488 (1951).
By subpoenaing Lee, the defendant sought to elicit
testimony at the evidentiary hearing regarding Farak's cocaine
use before and during her employment at the Amherst drug lab.
During her testimony before the grand jury, Lee stated that she
herself had tried cocaine, that she had observed Farak using
Martin, 423 Mass. 496, 500-501 (1996) (discussing so-called
"waiver by testimony" rule).
41
cocaine in 2000, and that she had marijuana in her house when
police officers arrived to search the premises as part of their
investigation of Farak.20 To the extent that Lee testified about
her own drug possession in relation to that of Farak, it is not
"perfectly clear" that such testimony could not possibly have
the tendency to incriminate Lee and subject her to criminal
prosecution. Therefore, Lee's invocation of her privilege
against self-incrimination would have been a proper basis for
the judge to quash the defendant's subpoena.
5. Conclusion. The order denying the defendant's motion
to withdraw his guilty pleas pursuant to Mass. R. Crim. P.
30 (b) is vacated, and we remand this case for further
proceedings in accordance with this opinion.
So ordered.
20
The enactment of G. L. c. 94C, § 32L, inserted by St.
2008, c. 387, § 2, decriminalized only the possession of one
ounce or less of marijuana. A defendant still may be criminally
charged with possession of more than one ounce of marijuana.
See G. L. c. 94C, § 32L, third par.; Commonwealth v. Jackson,
464 Mass. 758, 762 (2013). Similarly, a defendant may be
criminally charged with possession with intent to distribute
marijuana, in violation of G. L. c. 94C, § 32C (a), even where
the amount of marijuana possessed is one ounce or less. See
Commonwealth v. Keefner, 461 Mass. 507, 508 (2012).