Commonwealth
v.
Gary

Appeals Court of Massachusetts.Oct 27, 2016
63 N.E.3d 62 (Mass. App. Ct. 2016)
63 N.E.3d 6290 Mass. App. Ct. 1112

No. 15–P–655.

10-27-2016

COMMONWEALTH v. Demare K. GARY.


MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On December 10, 2010, the defendant pleaded guilty to three drug-related offenses: possession with the intent to distribute cocaine, a drug violation near a school or park, and reckless endangerment of a child. On February 9, 2011, two months after the defendant's change of plea, the cocaine was tested at the William A. Hinton State Laboratory Institute, and Annie Dookhan served as the second confirmatory chemist. The evidence tested positive for cocaine. Approximately three years later, after Dookhan's misconduct had been revealed, see Commonwealth v. Scott, 467 Mass. 336 (2014), the defendant filed a motion for a new trial seeking to vacate his guilty pleas on the ground that because he was not aware of Dookhan's misconduct or that she would be involved in the testing of the cocaine, his guilty pleas were not intelligently and voluntarily made. Following an evidentiary hearing at which the defendant and the trial counsel testified, the motion judge, who was not the judge that presided over the defendant's plea hearing, concluded that the defendant's pleas of guilty were not knowing and voluntary and allowed the motion. The Commonwealth appeals.

During the pendency of the Commonwealth's appeal, the Supreme Judicial Court decided the case of Commonwealth v. Ruffin, 475 Mass. 1003 (2016). That case involved circumstances almost identical to the present one, and the parties agree that the decision is dispositive. In Ruffin, the court affirmed an order denying a new trial motion reasoning that: “The serendipitous assignment of Dookhan as one of two chemists who tested the alleged controlled substances in the defendant's cases—after his pleas had been accepted and he had been sentenced—does not give rise to a presumptive basis for vacating the guilty pleas. There being no basis to find that any governmental misconduct occurred in his case prior to the acceptance of his pleas, or that any governmental misconduct rendered the defendant's guilty pleas unintelligent or involuntary, the motion judge properly declined to vacate the guilty pleas.” Id. at 1004–1005.

In accordance with the analysis described above, we reverse the order allowing the defendant's motion for a new trial.

So ordered.