Opinion
12-P-1432
10-06-2015
COMMONWEALTH v. SHELLIE SPENCER.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury-waived trial, the defendant, Shellie Spencer, was convicted of the following: unlawful distribution of a class B controlled substance on January 25, 2010 (count 1), unlawful distribution of a class B controlled substance on January 27, 2010 (count 3), and unlawful distribution of a class B controlled substance within a school zone on January 27, 2010 (count 4). We consolidated the defendant's direct appeal with his appeal from the denial of his second amended motion for a new trial. On appeal, he argues (1) there was insufficient evidence to support the conviction on count 4 of distribution of a controlled substance in a school zone; and (2) the motion judge erred in denying the defendant's motion for a new trial on counts 1 and 3 based on disclosures concerning misconduct at the Department of Public Health's State Laboratory Institute in Amherst (Amherst drug lab).
The defendant was found not guilty on count 2, unlawful distribution of a class B controlled substance in a school or park zone on January 25, 2010.
After granting the defendant leave to amend his motion for a new trial to include a claim of misconduct at the Amherst drug lab, the trial judge conducted an evidentiary hearing on that motion. The parties agreed that the "laboratory integrity" issue would be decided separately, and it was ultimately heard by a second judge. The original trial judge decided the remaining issues in the defendant's amended new trial motion.
Discussion. 1. Insufficient evidence. The defendant argues there was insufficient evidence to establish distribution of a controlled substance within a school zone. We review under the Latimore standard, inquiring whether, viewing the evidence "in [the] light most favorable to the Commonwealth," and drawing reasonable inferences therefrom, "any rational trier of fact could [find] the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979). To convict a defendant of unlawful distribution of a controlled substance within a school zone pursuant to G. L. c. 94C, § 32J, the Commonwealth must prove that the offense was committed within 1,000 feet of school property.
Effective August 2, 2012, St. 2012, c. 192, § 30, amended G. L. c. 94C, § 32J, by reducing the school zone from 1,000 feet beyond school property to 300 feet. The offense at issue occurred on January 27, 2010.
We agree with the defendant that the evidence, even when viewed in the light most favorable to the Commonwealth, was insufficient to prove beyond a reasonable doubt that the offense took place within a school zone. The Commonwealth called only one witness, the arresting officer, to testify as to the distance between the January 27, 2010, drug sale and school property. The officer's testimony on direct examination regarding the distance was limited to the following:
Prosecutor: "Is [the meeting place for the drug sale] like across the street from the Coburn School?"On redirect examination, the prosecutor returned to the issue of distance:
Witness: "The CVS, the Coburn School is right behind it."
Prosecutor: "So they abut?"
Witness: "The properties abut."
Prosecutor: "[D]id you at some point take a measurement from the . . . [s]chool to the CVS where the transaction took place?"
Witness: "I did."
Prosecutor: "Do you know what that measurement was?"
Witness: "No. I don't know if we have it on here or not. They abut. The properties touch. They are not -- it is well within a thousand feet. The property is probably not even a foot."
. . .
Prosecutor: "Again, you say -- you said the CVS property abuts the . . . [s]chool?"
Witness: "If you prefer, I can put it on the board." The trial transcript reflects that the prosecutor then asked the officer to draw the buildings and place an "X" where he spoke with the defendant. At no time did the officer testify that the drug sale occurred within 1,000 feet of school property. Rather, he testified only that the CVS property and the school property were within 1,000 feet of each other. The drawing the officer made contained no measurements or scale. "The Commonwealth is obliged to demonstrate, with at least some degree of precision, that the illegal sale of drugs took place within 1,000 feet of a school" (emphasis supplied). Commonwealth v. Williams, 54 Mass. App. Ct. 236, 247 (2002). The Commonwealth fails to meet its burden if, "[i]n choosing among the possible inferences from the evidence presented, a [fact finder] necessarily would have had to employ conjecture." Commonwealth v. Croft, 345 Mass. 143, 145 (1962). To infer that, because the CVS and school properties abut, the drug sale must have occurred within 1,000 feet of school property would have indeed required impermissible conjecture.
The Commonwealth therefore failed to establish an essential element of the school zone violation, and the conviction on count 4 cannot stand.
Because we conclude that the Commonwealth did not prove the school zone charge, we need not address the defendant's argument that counsel's failure to object to the reopening of direct examination of the arresting officer amounted to ineffective assistance of counsel.
2. Misconduct at the Amherst drug lab. The defendant argues that the second judge abused his discretion in denying the defendant's motion for a new trial based on misconduct by assistant analyst Sonja Farak and mismanagement of the Amherst drug lab more generally. We review the judge's decision "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
a. Misconduct of assistant analyst Sonja Farak. Farak signed the drug analysis certificate with respect to count 1. Based in part on his findings from an evidentiary hearing held on fifteen other postconviction cases regarding alleged misconduct at the Amherst drug lab, the second judge denied the defendant's motion for a new trial on count 1 on the ground that there was no evidence that Farak was stealing cocaine and replacing it with other substances in 2010 when she analyzed the cocaine in the instant case. However, in reaching his decision, the judge did not have the benefit of the guidance provided in Commonwealth v. Cotto, 471 Mass. 97 (2015), regarding postconviction relief for defendants potentially affected by Farak's misconduct. In Cotto the Supreme Judicial Court prescribed the following remedial measures, at least until a thorough investigation by the Commonwealth into Farak's misconduct is completed: "[W]here 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." Id. at 114. Here, the Cotto remedy is appropriate. Farak was the assistant analyst who signed the drug certificate related to count 1, and that drug sample has not been destroyed. Therefore, the second judge's denial of the defendant's motion for a new trial based on the date the cocaine was tested must be reversed. Pursuant to Cotto, the defendant is entitled, upon appropriate motion, to retest the sample tested by Farak in 2010.
In September and October, 2013, the second judge had conducted evidentiary hearings to establish the timing and scope of Farak's alleged criminal conduct, as well as the practices at the Amherst drug lab underlying the findings of a quality assurance audit conducted by the State Police in October, 2012, in order to determine how these issues might relate to the reliability of drug tests performed there. At the hearing on the defendant's motion for new trial, held on December 19, 2013, the parties stipulated to the transcripts and exhibits presented at the earlier hearings.
Although the Cotto procedure was prescribed explicitly for cases in which the defendant had tendered a guilty plea, 471 Mass. at 114, the same procedure is appropriate as a remedy in cases where, as here, the defendant was convicted after a trial. See, e.g., Commonwealth v. Gaston, 86 Mass. App. Ct. 568, 571-574 (2014).
b. Mismanagement of the Amherst drug lab. The second judge also denied the defendant's motion for a new trial on the grounds that the October, 2012, quality assurance audit did not reveal unreliable testing at the Amherst drug lab, and the defendant did not present evidence of any misconduct by Rebecca Pontes, the assistant analyst who signed the drug certificate with respect to count 3. In Cotto, the court expressly limited retesting to those drug samples with certificates signed by Farak. See Cotto, 471 Mass. at 114. In light of Cotto, we discern no error in the second judge's decision concerning the sample tested by Pontes, and we therefore affirm the denial of the defendant's motion for a new trial as to count 3.
Conclusion. On count 1 of the indictment, the judgment is reversed, the finding is set aside, and the case is remanded for further proceedings consistent with Commonwealth v. Cotto, 471 Mass. 97 (2015). So much of the orders dated May 21, 2013, and January 2, 2014, that denied the second amended motion for new trial as to count 1 are reversed. On count 3 of the indictment, the judgment is affirmed, as are so much of the May 21, 2013, and January 2, 2014, orders that denied the second amended motion for new trial as to count 3. On count 4 of the indictment, the judgment is reversed, the finding is set aside, and judgment shall enter for the defendant.
So ordered.
By the Court (Kafker, C.J., Trainor & Massing, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 6, 2015.