text:
    COMMONWEALTH v. Steven GULLEY.
    17-P-537
    Appeals Court of Massachusetts.
    Entered: July 26, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A Superior Court jury convicted the defendant of breaking and entering in the daytime with the intent to commit a felony, G. L. c. 266, § 18 ; malicious destruction of property over $250, G. L. c. 266, § 127 ; assault and battery, G. L. c. 265, § 13A(a ) ; threating to commit a crime, G. L. c. 275, § 2 ; and intimidation of a witness, G. L. c. 268, § 13B. The defendant now appeals arguing that the Commonwealth failed to sustain its burden at trial for three of the convictions and that the prosecutor's closing argument created a substantial risk of a miscarriage of justice. We reverse the judgment as to malicious destruction of property over $250, set aside that verdict, and remand the matter for entry of a judgment against the defendant on the lesser included offense of malicious destruction of property $250 or under. We otherwise affirm the remaining judgments.

Background. We summarize the evidence at trial relevant to this appeal in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). On February 21, 2013, the victim returned home from work to find the bottom half of her front door kicked in. The victim called the police and her sister-in-law. After ending her telephone calls, the victim heard knocking on her back door. Upon looking through the window, the victim saw the defendant standing in front of the back door. The defendant began shouting and threatening to kill the victim because he believed she "took his money." As the victim approached the door, the defendant kicked in the back door. The victim attempted to flee to the front door, but the defendant grabbed her by the neck. While continuing to shout threats against the victim's life, the defendant pushed the victim into a wall and threw her down to the ground. While the victim was on the ground, the defendant kicked her repeatedly and was screaming that he was going to kill her.

The victim's sister-in-law then entered the victim's home and saw the defendant standing over the victim. When the defendant saw the victim's sister-in-law, he pushed the victim away, took the victim's cellular telephone (cell phone) from her, and left through the broken front door. The sister-in-law called the police who arrived shortly thereafter and began their investigation. Officers soon located the defendant about two to three blocks away and brought him back to the victim's home, where the victim identified the defendant as her attacker. While being booked, the police found three cell phones on the defendant's person.

1. Sufficiency of the evidence. The defendant claims that his convictions for breaking and entering with intent to commit a felony, malicious destruction of property over $250, and intimidation of a witness must be reversed because there was insufficient evidence to prove an element of each offense. In considering claims of insufficient evidence, this court reviews the evidence in the light most favorable to the Commonwealth to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Latimore, supra at 677. We review each conviction in turn.

a. Breaking and entering with intent to commit a felony. The defendant contends that the evidence at trial was insufficient to prove the element of intent to commit the felony of assault and battery by means of a dangerous weapon upon his entry into the victim's home. "The 'intent to commit a felony' is an essential element of the crime ... [of] breaking and entering in the daytime with intent to commit a felony." Commonwealth v. Walter, 40 Mass. App. Ct. 907, 909 (1996) (quotation omitted). The intent must exist at the time of the breaking and entering. See Commonwealth v. Graham, 62 Mass. App. Ct. 642, 645-646 (2004). Here, the jury could have readily inferred such intent from the defendant's statements prior to entry and from his actions while inside the house. See Commonwealth v. Perron, 11 Mass. App. Ct. 915, 917 (1981), quoting from Commonwealth v. Shedd, 140 Mass. 451, 453 (1886) ("The requisite felonious intent may be inferred from the actual commission of the felonious act, as well as 'from the circumstances attending the act, and from the conduct and declarations of the defendant' " [citation omitted] ).

The victim's testimony that she heard the defendant threaten to kill her immediately before he broke into her house permitted the jury to reasonably infer that the defendant formed the necessary intent at the requisite time. Additionally, the jury could have inferred intent based on the defendant's actual attack on the victim. While there was evidence that the defendant wanted only to collect his paycheck at the time he broke into the victim's house, "it is the province of the jury to resolve the discrepancy [among the conflicting interpretations of the evidence] and 'determine where the truth lies.' " Commonwealth v. Platt, 440 Mass. 396, 401 (2003) (quotation omitted). The Commonwealth therefore provided sufficient evidence to establish the defendant's intent to commit the felony of assault and battery by means of a dangerous weapon. The motion for a required finding of not guilty was properly denied as to this count.

b. Malicious destruction of property over $250. The defendant argues that the judge erred in denying his motion for a required finding of not guilty for the felony offense of malicious destruction of property valued over $250. Under G. L. c. 266, § 127, it is the value of the property destroyed that distinguishes a felony conviction from a misdemeanor conviction. Commonwealth v. Beale, 434 Mass. 1024, 1025 (2001). "[W]here damage is caused to a portion of the property as a whole and may be replaced or repaired, the value of the property is to be measured by the pecuniary loss, in this case the reasonable cost of repair necessitated by the malicious conduct." Commonwealth v. Deberry, 441 Mass. 211, 213 (2004). The pecuniary loss is an element of the felony and the jury must find beyond a reasonable doubt that the defendant caused damage to the victim's property in excess of $250. See id. at 224.

We agree with the defendant that even when viewed in the light most favorable to the Commonwealth, the evidence at trial was insufficient to establish that the damage to the defendant's doors exceeded $250. The Commonwealth did present the jury with evidence that the front door had to be replaced and that this cost $180. The Commonwealth also introduced photographs of both damaged doors. However, with nothing more, we cannot conclude that application of common sense by the jury can bridge the evidentiary gap. See Commonwealth v. Muckle, 59 Mass. App. Ct. 631, 643 (2003). Where, as here, the jury convicted the defendant of the felony offense of malicious destruction of property but there was insufficient evidence that the value of the property destroyed was over $250, the verdict still supports all the elements of the lesser included offense of misdemeanor malicious destruction of property beyond a reasonable doubt. Thus, the judgment as to malicious destruction of property over $250 is reversed, that verdict is set aside, and the matter is remanded for entry of a judgment against the defendant on the lesser included offense of malicious destruction of property $250 or under. See Deberry, supra.

c. Witness intimidation. As relevant here, intimidation of a witness requires proof that a defendant, directly or indirectly, willfully intimidated or harassed another person who was a witness at any stage of a criminal investigation. G. L. c. 268, § 13B(1)(c )(i). "Intimidation requires 'putting a person in fear for the purpose of influencing his or her conduct.' " Commonwealth v. Ruano, 87 Mass. App. Ct. 98, 100 (2015), quoting from Commonwealth v. McCreary, 45 Mass. App. Ct. 797, 799 (1998). "[A]n 'action does not need to be overtly threatening to fall within the meaning of intimidation.' " Ruano, supra at 101, quoting from Commonwealth v. Cohen (No. 1), 456 Mass. 94, 124 (2010).

The defendant argues that the evidence showing he took the victim's cell phone from her person fails to satisfy the elements of intimidation of a witness. Specifically, the defendant argues that the Commonwealth failed to prove that he formed the necessary intent to interfere with the victim's communication with the police because the victim testified to having already contacted the police before he allegedly attacked her. See Commonwealth v. Morse, 468 Mass. 360, 372 (2014). However, viewing the evidence in the light most favorable to the Commonwealth, the defendant did not know that the victim already called the police when he took her cell phone immediately prior to fleeing. Rather, a reasonable juror could have found beyond a reasonable doubt that the defendant did violently attack the victim, took the victim's cell phone with the intent of preventing her from calling the police, and then fled. Thus, we agree with the Commonwealth that this conduct could reasonably be construed as an attempt by the defendant to hinder the victim's effort to "furnish[ ] information to a criminal investigator relating to a crime." Commonwealth v. Belle Isle, 44 Mass. App. Ct. 226, 228 (1998). Therefore, the motion for a required finding of not guilty was properly denied as to this count.

2. Closing argument. We reject the defendant's argument that a substantial risk of a miscarriage of justice resulted from the prosecutor's suggestion in her closing argument that the victim had no motive to lie. We agree that a prosecutor may not tell the jury that the victim has no reason to lie. See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). Here, however, the prosecutor asked whether the victim had any motive to lie. The Supreme Judicial Court has held that this formulation is proper at least where, as here, defense counsel has challenged the credibility of the victim in the defendant's closing argument. Commonwealth v. Polk, 462 Mass. 23, 39-40 (2012). Accord Commonwealth v. Rakes, 478 Mass. 22, 45 (2017) ; Commonwealth v. Fernandes, 478 Mass. 725, 743 (2018). Accordingly, even if there were any error, it did not rise to the level of a substantial risk of a miscarriage of justice. See Commonwealth v. Miller, 457 Mass. 69, 79 (2010).

Conclusion. For the reasons set out above, the judgment as to malicious destruction of property over $250 is reversed, that verdict is set aside, and the matter is remanded for entry of a judgment against the defendant on the lesser included offense of malicious destruction of property $250 or under. The remaining judgments are affirmed.

So ordered.

Reversed in part and remanded; affirmed in part.

      The jury found the defendant not guilty of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(b ) ; three counts of assault with intent to commit murder, G. L. c. 265, § 15 ; and two counts of assault and battery causing serious bodily injury, G. L. c. 265, § 13A(b ). After the close of the Commonwealth's case, the judge allowed the defendant's motion for a required finding of not guilty as to one count each of breaking and entering in the daytime with the intent to commit a felony, G. L. c. 266, § 18, and larceny over $250, G. L. c. 266, § 30.

      We disagree with the defendant's suggestion that the jury instructions on this point, to which there was no objection, were unclear. The judge instructed, in part, that the Commonwealth had to prove that the "the defendant entered the building belonging to another ... [and] that the defendant did so with intent to commit a felony in that building." The instructions tied the intent to the moment of entry.

      As to the conviction of malicious destruction of property over $250, the judge sentenced the defendant to two and one-half months committed to the house of correction, which is the maximum permitted under the statute for the lesser included offense of malicious destruction of property $250 or under. We therefore do not remand the matter for resentencing. We note, however, that according to the record before this court, the lower court docket states that the defendant received a committed sentence of two and one-half years on the conviction of malicious destruction of property over $250.

      The defendant also contends that there was a substantial risk that the defendant was convicted on the charge of intimidation of a witness for conduct for which he was not indicted. See Commonwealth v. Barbosa, 421 Mass. 547, 554 (1995). Here, the judge properly instructed the jury that the intimidation of a witness charge was solely for the defendant's conduct on February 21, 2013. Additionally, the closing arguments of both the prosecutor and defense counsel focused solely on the defendant's conduct on February 21, 2013, for this charge. Accordingly, we find no error.

      Use of force without verbal communication to prevent a person from calling the police to report a crime may fall within the crime of witness intimidation. See Commonwealth v. Belle Isle, 44 Mass. App. Ct. 226, 228-230 (1998).


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Mark A. STACY.
    17-P-554
    Appeals Court of Massachusetts.
    Entered: July 26, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant was charged with two counts of receiving stolen property and two counts of habitual offender penalty enhancements. He reached a plea agreement with the Commonwealth and, on September 8, 2016, pleaded guilty to one count of receiving stolen property. As part of the agreement the Commonwealth moved to dismiss the three remaining counts. Eight days later, at what was supposed to be the sentencing hearing, the defendant moved to withdraw the guilty plea on the ground that he had misunderstood how much credit he would get for time served since his arrest on the instant charges, because he would not be given credit for six months of that time, which was a sentence imposed as a result of a revocation of probation on a prior conviction which he violated by his commission of the offenses charged in this case. The judge allowed his motion to withdraw his guilty plea, and vacated his order dismissing the three other counts.

Three days later, on September 19, 2016, the day trial was supposed to begin, the defendant changed his mind again. The Commonwealth was still willing to offer the original deal, and so the defendant changed his plea to guilty on one count of receiving stolen property, the judge accepted the plea, and the judge on the Commonwealth's motion once again dismissed the other three charges. The parties presented the court with a joint recommendation for a sentence of three and one-half years to three and one-half years and one day. The judge accepted the recommendation and imposed that sentence. Subsequently, the defendant filed a motion to revise and revoke and a supplemental motion to revise and revoke alleging that the lengthy board of probation record (CORI) that had been before the judge at sentencing included an open District Court case from Brockton that was not his. (That case was never mentioned at any of the three hearings.) In addition, the CORI did not contain a case in which the defendant was convicted, twenty-nine years earlier in 1987, and sentenced to six to ten years in State prison. In support of these allegations, he attached letters addressed to him from Cathy Lynch, a paralegal at Plymouth County Inmate Legal Services, which noted the errors. The judge denied the motion adding a notation that read, "Any claimed erro[r]s in defendant's board of probation record would not [a]ffect the sentence imposed."

On appeal, the defendant argues that the judge erred and was required to hold an evidentiary hearing on, and to allow, his revise and revoke motion because the CORI he had before him at the time of sentencing was incorrect and that the judge's consideration of it violated due process. See Commonwealth v. LeBlanc, 370 Mass. 217, 221 (1976) ("Due process would require resentencing if the sentencing judge had relied on information which was inaccurate or misleading ...").

First of all, it is not clear whether the judge ever relied on a faulty CORI. In her letter to the defendant concerning the open District Court matter out of Brockton, Lynch wrote that she had already called the court to resolve the issue and would "check in a couple of days" to make sure the open case no longer appeared on the defendant's record. This letter was dated March 10, 2016, approximately six months before the first hearing in this case.

In any case, even assuming the judge had an incorrect CORI in front of him when he imposed the sentence, he accepted a recommendation of the parties as to the appropriate sentence. The defendant has an extraordinarily long record of which the judge was aware at the time of sentencing. Of course he should not have considered any charge that was not associated with the defendant, but the judge concluded in reviewing the motions that, even if the error the defendant described was made on the CORI, it would not have affected the sentence he imposed. We interpret this as meaning that the judge, in sentencing the defendant, did not rely on any inaccurate information. We see no abuse of discretion in that conclusion, nor in the judge's denial of the motions to revise and revoke.

Beyond that, the defendant's arguments are all about the reinstatement after the withdrawal of his original guilty plea of the three charges that the judge had dismissed. To begin with, prosecution of the defendant on those counts would not have been double jeopardy. Although, ordinarily, "jeopardy attaches on acceptance of a tendered guilty plea," Commonwealth v. Dean-Ganek, 461 Mass. 305, 312 n.11 (2012), a defendant "waive[s] the defence of former jeopardy as a bar to further proceedings ... by retracting his plea." Commonwealth v. Therrien, 359 Mass. 500, 505 (1971). It is therefore clear that the Commonwealth could have obtained new indictments on each of these charges. The defendant argues that that is what the Commonwealth was required to do, and that the judge could not vacate an order of dismissal and resuscitate what were dismissed charges.

We need not decide the issue, as it is moot. The defendant was not convicted of any of these offenses and indeed they were dismissed as part of the plea agreement between the Commonwealth and the defendant. One way or another, prior to entering his ultimate guilty plea in this case, he faced trial on those three charges, so even if there was a procedural irregularity that the Commonwealth would properly have had to fix in order to proceed against him, where the Commonwealth did not proceed against him but rather agreed to drop the charges altogether, the defendant has not shown prejudice from any error.

Judgment affirmed.

Orders denying motion to revise and revoke and supplemental motion to revise and revoke affirmed.

      In the trial court, the defendant did not move for an evidentiary hearing. He only requested the judge to "reconsider the defendant's criminal history, including prior convictions vacated," and to "reconsider the sentence imposed." Had the defendant moved for one, in light of our analysis below, denying this motion would not have been in error.


text:
    Ferahnaz KAHYAOGLU v. Rawhl A. ADAMS, Jr.
    17-P-658
    Appeals Court of Massachusetts.
    Entered: July 26, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In this action, the plaintiff, Dr. Ferahnaz Kahyaoglu, maintained that as a result of the defendant's, Rawhl A. Adams, Jr.'s, lack of reasonable care in exiting his vehicle, she sustained serious personal injuries. The defendant disputed the facts surrounding the collision as well as the nature and extent of the plaintiff's injuries. Following a trial in August, 2016, a jury credited the defendant's version of events. Proceeding pro se, the plaintiff appeals from the judgment on the jury verdict in favor of the defendant and the order denying her motion for new trial. We affirm.

The plaintiff's first claims of error concern the trial judge's alleged mishandling of his gatekeeper function with respect to the defendant's expert witness, Dr. Paul Weitzel. She argues that the judge erred by failing, sua sponte, to make inquiry into Dr. Weitzel's potential conflicts of interest and bias; and in failing to engage in a Daubert-Lanigan analysis of his proposed testimony. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) ; Commonwealth v. Lanigan, 419 Mass. 15 (1994).

We disagree with those contentions. Absent a request from a party, a trial judge has no independent duty to investigate the possible conflicts of a witness. The plaintiff neither asked the judge to exclude or limit Dr. Weitzel's expert testimony, nor requested a Daubert-Lanigan-type hearing, thereby waiving those issues. See Commonwealth v. Fritz, 472 Mass. 341, 349 (2015).

In any event, even if errors occurred with respect to the defendant's expert witness, it would not assist the plaintiff. The jury ultimately resolved the case by finding that the defendant was not negligent. This may, understandably, confuse the pro se plaintiff, because, of course, the name commonly given the tort is "negligence." But what the jury found was that the defendant was not negligent in the narrower sense in opening his car door as he did -- that is, they found that he had not breached any duty by failing to take due care when required to do so.

Since that means that, as a matter of law, the defendant is not liable, even if the accident in fact caused all the damage the defendant's expert testified that it did not, any error or abuse of discretion in the admission of Dr. Weitzel's testimony was inconsequential, and can provide no basis for overturning the judgment on appeal. See G. L. c. 231, § 119 ; Gonzalez v. Spates, 54 Mass. App. Ct. 438, 446 (2002).

We also find no merit to the plaintiff's unfair trial arguments. First, we discern no abuse of discretion in the judge's conclusion of the second day's proceedings, consistent with the court's regular schedule, at around 1:00 P.M. Second, to the extent the plaintiff challenges one of the jury instructions on assessing witness credibility, the plaintiff's trial counsel did not preserve any objection to the charge. See Lee v. Mt. Ivy Press, L.P., 63 Mass. App. Ct. 538, 560 (2005). In any event, were we to reach the merits, we would conclude that the judge provided fair and balanced instructions on the topic. The judge not only instructed the jury to avoid giving special attention to any one instruction and to consider all of his instructions as a whole, but also directed them "to be completely fair and impartial," not to be influenced by personal dislikes, and to decide the case solely on their evaluation of the evidence. On two occasions, moreover, he expressly prohibited them from assessing witness credibility based on their individual prejudices or biases. As an appellate court, we presume that the jury followed the judge's instructions. See Reckis v. Johnson & Johnson, 471 Mass. 272, 304 n.49 (2015).

Next, to the extent the plaintiff's argument is properly before us that there was error in the motion judge's order denying her motion, filed almost six weeks after she filed her complaint, requesting an eight-week extension of time in which to find an attorney, we see no error. The judge denied the motion only because it had not been filed according to the procedures set out in Superior Court Rule 9A ; the judge's ruling specifically stated that it was without prejudice, that is, that the plaintiff could refile the motion if she filed it in compliance with that rule. The plaintiff does not articulate any reason that ruling was incorrect.

Finally, because the plaintiff had no right to the effective assistance of counsel in this garden-variety negligence case, she may not challenge the outcome of the proceedings on the basis of counsel's ineffectiveness. See Commonwealth v. Patton, 458 Mass. 119, 124-128 (2010).

Judgment on jury verdict affirmed.

Order denying motion for new trial affirmed.

      The plaintiff did not appeal from the separate judgment that entered in favor of Encompass Insurance Company, which was also named as a defendant in the underlying action, based on the allowance of its motion to dismiss. Additionally, although listed in her notice of appeal, the plaintiff did not address the order denying her motion for a new trial in her brief. We deem her appeal of that order waived. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Abate v. Fremont Inv. & Loan, 470 Mass. 821, 833 (2015). Were we to reach the merits of that order, we would conclude, as did the trial judge, that the verdict was not against the weight of the evidence.

      In a videotaped deposition played for the jury, Dr. Weitzel, a board-certified specialist in orthopedics with a subspecialty certification in sports medicine, testified that the plaintiff's most serious injuries were not causally related to the accident.

      Following empanelment, the judge instructed the jury that he would adhere to a half-day trial schedule (commonly applicable in Superior Court sessions). The defendant rested his case after Dr. Weitzel's videotaped deposition ended shortly before 1:00 p.m. So far as appears, the plaintiff's trial counsel did not object to this alleged unfair highlighting of Dr. Weitzel's testimony.

      The plaintiff, who speaks English with a "strong accent," maintains that the judge improperly misdirected the jury by telling them to focus on presentation rather than "content and context."

      Regarding the plaintiff's complaint that her counsel referred to the defendant's counsel as "brother," the words brother and sister are commonly used by members of the bar throughout Massachusetts to convey the absence of personal animosity among the attorneys. In this case, both attorneys used the term "brother."


text:
    COMMONWEALTH v. Chester WILLIAMS.
    17-P-957
    Appeals Court of Massachusetts.
    July 26, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Chester Williams, entered into two plea agreements -- one in 2010, the other in 2011 -- that included drug charges infected by the misconduct of former William A. Hinton State Laboratory Institute (Hinton Lab) chemist Annie Dookhan. He moved in Superior Court to vacate his guilty pleas. A special judicial magistrate entered proposed findings and an order denying his motions, which were adopted by a judge. He now appeals. We affirm the order with respect to the 2010 plea agreement but reverse with respect to the 2011 plea agreement.

Background. 1. 2010 plea agreement. On October 3, 2008, Williams was charged with possession of cocaine with intent to distribute, subsequent offense, along with a school zone enhancement, which would have subjected him to a minimum mandatory sentence of five years for the possession with intent to distribute charge and two and one-half years from and after on the school zone enhancement (2008 case). See G. L. c. 94C, § 32A(d ), as in effect prior to St. 2012, c. 192, § 14; G. L. c. 94C, § 32J. The case went to trial, at which a judge granted Williams's motion for a required finding of not guilty on the school zone enhancement and the jury hung on the possession charge. This resulted in a mistrial.

At the plea hearing on February 17, 2010, the prosecutor represented that the Commonwealth would prove that, on August 20, 2008, police officers observed Williams sitting on a wall at a bus stop for about fifteen minutes in the Chinatown area of Boston. During that time, he had a conversation with someone who appeared to the officers to be a drug user, got on his bike, which was nearby, pedaled about sixty feet, and looked around in all directions. He stepped into an indentation in the wall, boosted himself up, reached behind the wall with his left arm, came down off the wall, and placed something in his mouth. He returned to the bus stop. Officers went to "where he had been," and recovered one plastic bag containing four smaller plastic bags, each of which contained twenty-five individually wrapped pieces of what was later tested to be cocaine. Dookhan was not involved in this case.

On January 1, 2009, Williams was indicted for distribution of cocaine, subsequent offense, with a school zone enhancement, which would have subjected him to a minimum mandatory sentence of five years on the distribution charge and two and one-half years from and after on the school zone enhancement (2009 case). See G. L. c. 94C, § 32A(d ), as in effect prior to St. 2012, c. 192, § 14; G. L. c. 94C, § 32J. At the same plea hearing as the 2008 case, the prosecutor represented that the Commonwealth would prove that, on December 9, 2008, officers observed Williams being approached by approximately six people "in the area of Washington Street and Kneeland Street." One of them, George Macintosh, extended his hand to Williams, retracted it, and put something in his mouth. Officers approached Macintosh soon afterwards, and something fell out of his mouth, which was later tested to be cocaine. Macintosh telephoned someone he claimed was Williams, directed that person to a McDonalds, Williams appeared, and the officers arrested him. Dookhan was listed as the assistant analyst on the drug certificate in this case.

Williams pleaded guilty in the 2008 and 2009 cases in a single hearing. In exchange for his pleading guilty in both cases, the parties agreed that the Commonwealth would eliminate the subsequent offense portions of the charges in both cases, dismiss the school zone enhancement in the 2009 case, and recommend the following sentences: in the 2008 case, Williams was to receive one year in the house of correction, 290 days deemed served, the balance suspended for three months; in the 2009 case, he was to receive three months probation concurrent with the suspended sentence in the 2008 case. The judge followed the parties' joint sentencing recommendation.

2. 2011 plea agreement. On September 16, 2010, Williams was indicted for possession of cocaine with intent to distribute, subsequent offense (count I), and distribution of cocaine, subsequent offense (count III), each count with a park zone enhancement (2010 case). He faced a minimum mandatory sentence of five years on the distribution and possession charges, and two and one-half years from and after on the park zone enhancements. See G. L. c. 94C, §§ 32A(d ) & 32J.

At the plea hearing on June 8, 2011, the prosecutor represented that the Commonwealth would prove with respect to count III that, on March 31, 2010, officers observed Williams, whom they had known from previous cases, walking near the Haymarket Massachusetts Bay Transportation Authority (MBTA) station, which was close to Holocaust Memorial Park. As he walked across the street, he spat some items into his hand and put them back in his mouth. He then met up with a man identified in the indictment as Bruce Shonefeld. The men exchanged something and split apart. The police detained, Mirandized, and recovered drugs from Shonefeld, who told the officers that he paid his dealer sixty dollars in three twenty-dollar bills, and provided the dealer's phone number. The drugs were later tested to be cocaine. The officers then arrested Williams, who was found with sixty dollars in three twenty-dollar bills in his front right pocket. Police recovered an additional $225 in cash. Williams provided an address of a homeless shelter. The police recovered two cellular telephones from Williams, one of which rang during booking. Dookhan was listed as the assistant analyst on the drug certificate corresponding to this count.

With respect to count I, the prosecutor represented that the Commonwealth would prove at trial that, on April 12, 2010, Williams's social worker called the West End Shelter at the Eric Lindemann Center -- which was not the shelter whose address Williams had provided to police on March 31 -- to collect his belongings. Some of his belongings were in a locker; the prosecutor did not say whether the locker was locked or unlocked. When shelter employees opened the locker, they found a small plastic bubble gum container, in which they found twenty-one individually-wrapped bags containing what appeared to be drugs and four to five loose rocks, all of which was later confirmed to be cocaine. Dookhan was not involved in the testing of these drugs.

At this plea hearing, Williams expressed some hesitation in his decision to plead guilty. Although he never stated that he intended to plead not guilty on count III, and initially indicated that he would be pleading guilty on it, he then asked for "more time to think it over." The judge granted a recess, after which Williams reaffirmed his intent to plead guilty on count III. However, after the prosecutor represented what the Commonwealth would prove with respect to count I, Williams initially said that he was not guilty of that offense and that he wanted a trial. After a recess at which he conferred with counsel, counsel reaffirmed that Williams wanted a trial on count I. The judge then heard arguments on whether to grant an evidentiary hearing on Williams's motion to suppress the drugs found at the West End Shelter, and took another recess. After this recess, but before the judge rendered a decision, Williams pleaded guilty to count I.

In exchange for his pleas, the Commonwealth agreed to drop the subsequent offender portions of both charges, as well as the park-zone enhancements. The parties also agreed to a sentencing recommendation of three years in State prison on count III and one year of probation from and after on count I. This agreement also required Williams to admit to violating his probation in the 2009 case, for which he received a sentence of three years concurrent with the sentence on count III. The judge accepted this recommendation.

Analysis. A motion to vacate a guilty plea is treated as a motion for a new trial under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), which we review for a "significant error of law or other abuse of discretion." Commonwealth v. Scott, 467 Mass. 336, 344 (2014), quoting from Commonwealth v. Sherman, 451 Mass. 332, 334 (2008). "The judge's findings of fact are to be accepted if supported by the evidence, and he is the 'final arbiter of matters of credibility.' " Ibid., quoting from Commonwealth v. Schand, 420 Mass. 783, 787 (1995).

To succeed, motions for a new trial based on government misconduct, such as this one, must satisfy two prongs. First, the defendant must show that "egregious government misconduct preceded the entry of his guilty plea and that it is the sort of conduct that implicates the defendant's due process rights." Id. at 347. In cases where Dookhan signed a certificate of analysis in the role of assistant analyst, the defendant is entitled to a "conclusive presumption" of "egregious government misconduct." Id. at 352. As the judge and special judicial magistrate found, Williams satisfied this prong by introducing certificates of analysis with respect to the 2009 case, and count III of the 2010 case, on which Dookhan's signature appears on the "assistant analyst" line.

To satisfy the second prong, the defendant must show a "reasonable probability that he would not have pleaded guilty had he known of Dookhan's misconduct." Id. at 355. In Scott, the Supreme Judicial Court identified as many as thirteen nonexhaustive factors that are relevant to the reasonable probability test, but emphasized that this is a "totality of the circumstances" determination. Id. at 358. The reasonable probability determination 'must be based on the actual facts and circumstances surrounding the defendant's decision at the time of the guilty plea in light of the one hypothetical question of what the defendant reasonably may have done if he had known of Dookhan's misconduct."Id. at 357. Williams's argument, essentially, is that the special judicial magistrate and the judge abused their discretion by overestimating the benefits of the deals to Williams and underestimating his "substantial ground[s] of defense," both of which are relevant factors under Scott. Id. at 356.

1. 2010 plea agreement. This plea agreement presents a knotty problem. We agree with the defendant that, without the certificate of analysis in the 2009 case, the Commonwealth's case as to the 2009 charges would have been extremely weak; indeed, there may well have been insufficient evidence to support a conviction. See Commonwealth v. Gaston, 86 Mass. App. Ct. 568, 574 ("[P]roof of Dookhan's wrongdoing as it related to the defendant's case provides its own shadow of reasonable doubt about the nature of the substances tested"). We have been told by the Supreme Judicial Court that in these circumstances we may not consider the possibility that the drugs could be retested (something that, in any event, raises a serious question given Dookhan's handling of evidence in the Hinton Lab). See Scott, 467 Mass. at 357-358. Furthermore, there is no evidence of a field test of the alleged drugs, nor a witness who might have testified to the nature of the substances. Given this, the Commonwealth likely would have had insufficient evidence of the composition of the substance that it alleged was cocaine.

Yet, however weak the evidence was in the 2009 case, the fact remains that, as a result of this package deal in which the 2008 charges were also resolved, Williams received what effectively amounted to time served and a seventy-five day sentence suspended for three months for a crime that carried a five-year minimum mandatory sentence in the 2008 case, and nothing additional on this count. Though we have no details, the fact that the jury had hung on the 2008 charge means that there was some risk of conviction after retrial, which would have been a genuine concern, rendering time served and a seventy-five day sentence suspended for three months an excellent bargain. On top of that, the three months of probation Williams received in the 2009 case were concurrent with the suspended sentence in the 2008 case.

Although we have some difficulty concluding with respect to a case that very likely could not have been won at trial, that there was no "reasonable probability that he would not have pleaded guilty had he known of Dookhan's misconduct," there may have been reluctance on Williams's part in this case to upset the apple cart of the package deal. It may well be that we should not take into account the fact that in such a circumstance a prosecutor might withdraw a deal on one charge despite a refusal to plead to a charge on which such thin evidence remained, but given our standard of review -- which is for abuse of discretion -- in the absence of further guidance from the Supreme Judicial Court on the issue we do not think the motion judge is foreclosed from doing so. We therefore hold that there was no abuse in discretion in finding that, had Williams known of Dookhan's misconduct, he would nonetheless have entered into the 2010 plea agreement.

2. 2011 plea agreement. With respect to the Dookhan-infected count III at issue in the 2011 plea agreement, we also think the remaining case was weak. In describing the evidence on this count, the special judicial magistrate said,

"The incident that occurred on March 31, 2010[,] was observed by a number of police officers. The buyer was found with cocaine on his person, and he immediately identified the defendant as the person who sold him the drugs. The defendant had [sixty dollars] in his right front pocket, consistent with the amount the buyer had stated he gave the defendant in exchange for the drugs. The grand jury minutes indicate that the buyer gave the police the phone number by which he had contacted the defendant."

Although there was certainly evidence that a transaction involving drugs had occurred, we agree with the defendant that in the absence of the Dookhan-tainted certificate, the Commonwealth would have been hard-pressed to identify the drug as cocaine, which is a necessary element of the offense. Once again, there is nothing to indicate that the Commonwealth performed a field test on the substance, nor was there a witness who had used it and could testify to what it was. Even had the Commonwealth been able to track down Shonefeld, he could have refused to testify by asserting his privilege against self-incrimination. Given the absence of other evidence of composition, Williams might well have had prevailed at trial on this count. Indeed, the transcript of the plea hearing indicates that he was reticent to go to trial even without knowing of Dookhan's misconduct.

As our analysis above suggests, given that this was a package deal on counts I and III, the strength of the Commonwealth's case with respect to count I, the non-Dookhan-tainted charge is also relevant to our analysis since, had Williams rejected the deal, he would have had to proceed to trial on it as well. Although there is no reason to doubt the accuracy of the certificate of analysis here, we agree with the defendant that the Commonwealth's case was not strong. The drugs were found in a locker in a homeless shelter when a third party went to retrieve some of Williams's belongings some twelve days after the defendant was arrested. The prosecutor did not proffer any evidence that the locker was locked or that only Williams (and shelter staff) had access to it. Nor did the prosecutor even proffer evidence of when Williams was last at the West End Shelter. He gave a different address to police on March 31 suggesting that he did not stay there consistently. The absence of such evidence could have provided the requisite reasonable doubt as to whether the drugs found in the locker belonged to Williams. Further, that Williams himself and through his counsel twice indicated that he would plead not guilty on this count is still more evidence of the weakness of the Commonwealth's case as he understood it and his willingness to take his chances at trial, both of which are relevant to the reasonable probability analysis under Scott. See Scott, 467 Mass. at 355.

The special judicial magistrate also found that Williams received a "generous" deal in part because it allowed him to dispose of his probation violation without adding any incarceration beyond what he was getting as a result of his guilty plea on count III. But the generosity of this term presupposes that, had he gone to trial, he both would have been incarcerated and would have been found in violation of probation. Our analysis above shows that he had a substantial ground of defense on both counts and therefore very well could have avoided incarceration on them. Furthermore, the basis for Williams's alleged probation violation was the crimes he pleaded guilty to committing at the hearing. Although it would have been easier for the Commonwealth to prove a probation violation given the lower standard of proof that applies to probation violations, see Commonwealth v. Holmgren, 421 Mass. 224, 226 (1995) (Commonwealth need only prove probation violations by preponderance of evidence), the Dookhan-tainted certificate in count III, and the general weakness of the Commonwealth's case in count I, suggest that Williams had a chance of prevailing here as well. The tainted certificate at least would have given him leverage to negotiate a better deal on the probation violation.

In addition, the Dookhan-tainted count in the 2011 plea agreement accounted for the entirety of Williams's incarceration in that case (apart from the probation violation), which suggests that it was the "driving force behind the plea," Commonwealth v. Williams, 89 Mass. App. Ct. 383, 389 (2016), as does the fact that, absent the Dookhan taint, the Commonwealth's case on count III was much stronger than it was on count I.

In these circumstances, it would have been rational for Williams to proceed to trial. This, plus the fact that he had almost already done so, implies that, had he known of Dookhan's misconduct, there is a reasonable probability that he would have chosen to go to trial.

Conclusion. The order denying Williams's motion to vacate his guilty pleas in the 2010 plea agreement is affirmed. The order denying Williams's motion to vacate his guilty pleas in the 2011 plea agreement is reversed, and the findings are set aside.

So ordered.

Affirmed in part; reversed in part.

      For an overview of Dookhan's misconduct, see Commonwealth v. Scott, 467 Mass. 336 (2014).

      Superior Court docket number 2008-10946.

      In 2012, the Legislature reduced the minimum mandatory sentence under G. L. c. 94C, § 32A(d ), to three and one-half years.

      Superior Court docket number 2009-10069.

      Superior Court docket number 2010-10982.

      At the evidentiary hearing before the special judicial magistrate, the attorney who represented Williams at the 2011 plea hearing testified that he believed there were no locks on the lockers. Neither the special judicial magistrate nor the judge made a finding on this issue.

      The judge also terminated Williams's probation in the 2008 case at the request of the probation officer.

      That Williams's social worker had to request West End Shelter staff to retrieve his belongings suggests that Williams was unable to do so. It is thus also likely that Williams had been held in jail since his March 31 arrest, such that he had not been at the West End Shelter for, at a minimum, nearly two weeks before the drugs were discovered.