Commonwealth v. Rodriguez
Commonwealth v. Rodriguez
Opinion of the Court
*774In yet another case affected by the wrongdoing of former State chemist Annie Dookhan, see generally Commonwealth v. Scott,
Background. We recite the basic facts as the jury could have found them, reserving other facts for later discussion. On April 27, 2009, officers of the Boston police department's drug control unit went to the housing development where the defendant, Juan Carlos Rodriguez, lived to execute three search warrants: one for the defendant's apartment, one for his motor vehicle, and one for his person. Once inside the defendant's apartment, the officers used a key recovered from the defendant's motor vehicle to open a locked bedroom door. In the bedroom's closet, the police found a total of $13,270, a digital scale, and a small pouch that contained nine individually wrapped packages, or "fingers,"
Officer Robert England took the eleven packages to the police station and conducted a field test using a NarcoPouch 924 test kit manufactured by Safariland. The NarcoPouch 924 test kit is a small, sealed rubber pouch that contains three glass vials filled with chemical solutions. England unsealed the NarcoPouch 924 test kit, placed a small amount of the chalky substance inside the pouch, resealed it, and began "popping" the vials so that the unknown substance interacted with the chemical solutions. He testified, "I field-tested these drugs[
The eleven packages were sent to the William A. Hinton State Laboratory Institute in Jamaica Plain (Hinton lab) in April, 2009, for testing. As the primary chemist assigned to the case, Annie Dookhan "received [the packages] from the evidence office ... checked it and [did] all the preliminary testing, which included doing the net weight, doing color tests, [and] perhaps ... other kinds of testing." Della Saunders, the confirmatory chemist, received eleven vials prepared by Dookhan and tested them, concluding that "they were positive for the presence of heroin." Both *776Dookhan and Saunders certified that the packages seized from the defendant's closet and person contained heroin.
In 2013, Dookhan pleaded guilty to twenty-seven counts of criminal misconduct, including tampering with evidence, perjury, and obstruction of justice. The trial judge permitted the defendant substantial leeway in introducing evidence concerning Dookhan's arrest and prosecution for her criminal conduct at the Hinton lab, including the transcript of her guilty plea colloquy,
After Dookhan's wrongdoing came to light, the Commonwealth sent the eleven packages seized from the defendant to the laboratory at the Massachusetts State police forensic services group for retesting. Sarah Clark, a chemist at this laboratory, retested the substances in the packages and concluded that they contained heroin.
At trial, the defendant argued that Dookhan's participation irrevocably damaged the Commonwealth's case, and specifically that the Commonwealth could not meet its burden of proving that the packages the Boston police seized from the defendant contained heroin before Dookhan gained access to them. The Commonwealth combatted this defense on two grounds: first, that there was no direct evidence that Dookhan altered the evidence in this case
"How do you know this is heroin? You know it because Officer England came before you and told you right after they seized this, back at the station he performed a field test.... And on that date, what happened? It showed the presence of heroin in these drugs. Ladies and gentlemen, it was heroin on that date, and it is still heroin."
Discussion. 1. Field test evidence. a. Scientific reliability of field test results. The defendant contends that the judge erred by allowing the Commonwealth to introduce the results of the NarcoPouch 924 field test for heroin without demonstrating the test's scientific reliability under Commonwealth v. Lanigan,
The issue arose as follows. Jury selection began on a Friday. On that day the defendant filed a motion in limine "to preclude the Commonwealth from introducing, or referring to, purported field test evidence that the purported drugs in this case are heroin" on the ground that "this opinion does not meet the Daubert [
Even with a qualified officer testifying, field test evidence may not be offered without a demonstration of its validity or reliability under Lanigan. "[T]o date, no appellate case from Massachusetts has accepted as reliable field test results, regardless of the purposes for which they are offered. Until that occurs, field tests offered to prove the identity of a substance, 'presumptive' or otherwise, must be evaluated according to one of the methods approved in Lanigan." Commonwealth v. Fernandez,
In Fernandez, the Commonwealth introduced evidence that police officers conducted weekly field tests of the residue of plastic bags pulled from the defendant's trash with "Scott-Reagent tests" for cocaine manufactured by NIK Public Safety, Inc.
The court held that "the Commonwealth's relatively weak proffer," id. at 150,
The Fernandez decision does not excuse the complete absence of Lanigan screening in this case. It is true that defense counsel in this case, as in Fernandez, did not file his motion in limine until the first day of trial, prior to jury selection. The Commonwealth argued, and the judge agreed, that its future reliance on the field test was evident from the grand jury minutes, in which England testified and described his use of the "Narco Test Kit." The defendant replied that England's testimony before the grand jury did not put him on notice that the Commonwealth would employ England as an expert on the scientific validity of the field test.
Finally, unlike in Fernandez, the field test evidence was used without restriction and with no instruction on its presumptive nature or the possibility of false positives. On cross-examination, England did concede that a field test is a "preliminary" test, as distinguished from a "scientific" test performed at a drug testing laboratory. However, in closing argument the Commonwealth characterized the field test as conclusive evidence that "it was heroin on that date, and it is still heroin."
b. Prejudice. We further conclude that the error entitles the defendant to a new trial. Because the defendant preserved this issue with a timely objection, "we review the proceedings below for prejudicial error." Commonwealth v. Cruz,
In determining whether an error is prejudicial "we examine various factors, including the importance of the evidence in the prosecution's case; the relationship between the evidence and the premise of the defense; who introduced the issue at trial; the frequency of the reference; whether the erroneously admitted evidence was merely cumulative of properly admitted evidence; the availability or effect of curative instructions; and the weight or quantum of evidence of guilt." Dagraca, supra at 553,
Aside from the field test result, the Commonwealth presented little direct or circumstantial evidence of the composition of the drugs before they were sent to the Hinton lab. In some cases, a police officer with expertise in identifying drugs or a defendant's statements and course of conduct can be used to establish that a particular substance is a drug. See, e.g., Commonwealth v. Connolly,
Here, there were no controlled purchases and no incriminating statements by the defendant. England professed no ability to recognize drugs without conducting a field test ("I'm not a user so I field test everything"). Sergeant Detective William J. Feeney, *782who was the Commonwealth's expert on distribution and packaging of drugs, opined that "possession of over [one hundred] grams of [h]eroin in finger form" was consistent with possession with the intent to distribute. When asked, "[W]hat do you recognize that tan powder to be packaged like?" he responded, "It's consistent with fingers of [h]eroin, based on its color, its texture." This unsolicited remark regarding the color and texture of the substance, from an officer not shown to be an expert in identifying drugs, carries little weight. See Commonwealth v. Nelson,
The evidence that cash and a scale were found in the defendant's closet, that the substance was packaged in "finger" form, and that defendant fled while awaiting trial does not overcome the prejudice from the Commonwealth's reliance on the field test result. See King, supra at 360,
2. Limitations on defense evidence. The defendant contends the judge erred by not allowing Irwin to testify that Dookhan had a key to the evidence safe at the Hinton lab and in denying his request to introduce copies of Dookhan's indictments in evidence. Because these evidentiary issues might recur at any new trial, we comment briefly.
From conducting the investigation of Dookhan's criminal activity, Irwin had personal knowledge that Dookhan possessed a key that opened the locked door to the evidence safe. The judge disallowed Irwin's testimony about Dookhan's possession of the key under the erroneous premise that what defendant was seeking *783to introduce through Irwin was a statement against penal interest attributed to Dookhan. Irwin's testimony should not have been excluded on this ground. However, the judge did permit the defendant to present ample evidence to suggest that Dookhan had free access to evidence stored at the Hinton lab, and it was obvious that Dookahn, as primary chemist, had access to the eleven "fingers" seized from the defendant. "A trial judge has discretion to exclude evidence that would be merely cumulative of evidence already admitted." *869Commonwealth v. Urrea,
The judge did not abuse her discretion in excluding the indictments from evidence. Indictments have no probative value or evidentiary significance. See Commonwealth v. Kelley,
Conclusion. The judgment is reversed and the verdict is set aside.
So ordered.
Sergeant Detective William J. Feeney testified that a "finger" is a quantity of heroin purchased by mid-level dealers, and that the name is derived from the practice of packaging approximately ten grams of heroin inside the finger of a latex glove, tying it off in a knot, and then cutting off the finger.
On cross-examination, defense counsel established that England tested only one of the eleven packages.
At the plea colloquy, an assistant attorney general recited the following evidence of Dookhan's misconduct: improperly removing ninety drug samples from the evidence safe at Hinton lab, forging the signature of an evidence officer, specific instances of tampering with the testing of drug vials, submitting a discovery packet to a prosecutor that contained an altered test, and lying about her qualifications.
Daniel Renczkowski testified that he observed instances where Dookhan's laboratory bench practices subjected her samples to cross-contamination. Nicole Medina and Renczkowski testified that someone forged their initials on laboratory documents. Medina also testified that she saw Dookhan using a computer in a restricted area of the laboratory, and Peter Piro once observed Dookhan mishandling balances and scales.
The Supreme Judicial Court has since observed that it " 'may be impossible' for any defendant to prove that the drug analysis in his or her case was tainted by [Dookhan's] misconduct" because "even if Dookhan herself were to testify in each of the thousands of cases in which she served as primary or secondary chemist, it is unlikely that her testimony, even if truthful, could resolve the question whether she engaged in misconduct in a particular case." Bridgeman,
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
In Commonwealth v. Marte,
When asked how many times he had used a NarcoPouch test over the course of his career, he answered, "I mean a thousand is a lot, but I'd say-[I] use it all the time.... I field test everything."
In both Fernandez, supra at 149 n.17,
The judge declined to hold a full evidentiary hearing, but required the Commonwealth to provide "some foundation" for the field tests' reliability. Fernandez, supra at 148,
The defendant further contends that the Commonwealth violated its automatic discovery obligations by failing to disclose England as an expert witness. See Mass.R.Crim.P. 14(a)(1)(A)(vi), as amended,
The prosecutor was free to make this argument, which was firmly rooted in the evidence admitted at trial.
Dagraca, supra at 552-553,
We need not address the defendant's claim regarding the prosecutor's exercise of a peremptory challenge as the unique facts underlying this claim are unlikely to repeat.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.