COMMONWEALTH v. CORREA MARTINEZ (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2015, the defendant, Alberto Correa Martinez, pleaded guilty to possession with intent to distribute cocaine, a Class B substance (subsequent offense) (G. L. c. 94C, § 32A [a], [b] ), two counts of distribution of cocaine (subsequent offense) (G. L. c. 94C, § 32A [c], [d] ), one count of possession of a firearm without a firearm identification card (FID) (G. L. c. 269, § 10 [h] ), and two counts of possession of ammunition without an FID (G. L. c. 269, § 10 [h] ). The charges stemmed from evidence seized during a 2014 search of his home yielding firearms, ammunition, drug trafficking materials, cell phones, and currency. The defendant filed a motion to vacate his plea because, in 2016 (four months after his plea), Officer Gregg Bigda, one of the officers who executed the search warrant of his home, engaged in misconduct, and in 2017, a witness came forward with accusations that Bigda consumed alcohol and was intoxicated while on duty. Applying the Ferrara-Scott standard,² a Superior Court judge denied the defendant's motion. We affirm.

Discussion. We treat a motion to vacate a guilty plea as a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), and review a denial of the motion for a significant error of law or other abuse of discretion. Commonwealth v. Grace, 397 Mass. 303, 307 (1986). On appeal, the defendant contends that the judge abused his discretion because “newly discovered” evidence concerning Bigda's misconduct renders his plea unknowing and involuntary.

We begin by addressing the defendant's contention that the judge erred in analyzing his motion in light of Ferrara-Scott, which he maintains exclusively applies to cases involving misconduct by former forensic chemist Annie Dookhan.³ To meet the Ferrara-Scott standard, the defendant must show that (1) there was “egregiously impermissible conduct ․ by government agents ․ [that] antedated the entry of his plea,” and (2) such misconduct “influenced his decision to plead guilty or, put another way, that it was material to that choice.” Scott, 467 Mass. at 346. Because the defendant's motion is based on accusations of government misconduct that came to light after he pleaded guilty, the motion is governed by the Ferrara-Scott rubric.⁴ See id. (Ferrara-Scott analysis governs motions “to vacate a guilty plea as a result of underlying government misconduct, rather than a defect in the plea procedures”). Far from limiting the analysis to Dookhan cases, the court explained that the difference between the Dookhan cases, on the one hand, and other cases involving alleged government misconduct, on the other, is that, in the former, the defendant is entitled to a conclusive presumption with respect to the first prong of the Ferrara-Scott test, whereas in the latter, the defendant will have the burden to establish each prong. Id. at 352-354.

Turning to the first prong, the defendant has not established that the government misconduct preceded the entry of his guilty plea. The defendant pleaded guilty in October 2015. The defendant's alleged government misconduct consisted of: (a) a video from February 2016 -- after the defendant's plea -- depicting an interrogation of two juveniles during which Bigda threatened “to plant a kilo of cocaine,” asserted “he could pin the Kennedy assassination on [one of them] and make it stick,” and declared that “he is not hampered by the truth,” and (b) two newspaper articles, one published in 2016, in which a former officer alleged Springfield Police Department officers drank on duty, and the other published in 2017, in which the same former officer alleged Bigda routinely drank alcohol and became intoxicated while on duty and was told to “keep his mouth shut” about Bigda's actions.⁵ There was no apparent connection between the two juveniles depicted in the video and the defendant. Nor was there evidence that Bigda engaged in misconduct while working on the defendant's case. Absent some nexus between the misconduct and the defendant's case, the defendant's motion failed to satisfy the first prong of the Ferrara-Scott analysis. See Scott, 467 Mass. at 351 (to meet burden under first prong, defendant must show nexus between government misconduct and his particular case). See also Commonwealth v. Ellis, 432 Mass. 746, 764-765 (2000).

Even if we assume arguendo that the defendant met his burden under the first prong, his motion falters on the second prong because he did not show a reasonable probability that he would not have pleaded guilty had he known of the government misconduct. See Scott, 467 Mass. at 355-356. In assessing the defendant's motion under the second prong, the judge looks at the totality of the circumstances, considering inter alia, “(1) whether evidence of the government misconduct could have detracted from the factual basis used to support the guilty plea, (2) whether the evidence could have been used to impeach a witness whose credibility may have been outcome-determinative, (3) whether the evidence was cumulative of other evidence already in the defendant's possession, (4) whether the evidence would have influenced counsel's recommendation as to whether to accept a particular plea offer, and (5) whether the value of the evidence was outweighed by the benefits of entering into the plea agreement.” Id. See Ferrara, 456 F.3d at 294. The defendant must “convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Scott, 467 Mass. at 356, quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010).

As set forth supra, the defendant failed to show a nexus between Bigda's misconduct in 2016 and the allegations in 2016 and 2017 of alcohol consumption, on the one hand, and the defendant's case and his decision to plead guilty in 2015, on the other. Additionally, Bigda's testimony regarding the items he seized, while not entirely cumulative,⁶ would not have been outcome-determinative. See Scott, 467 Mass. at 360, quoting Grace, 397 Mass. at 305. Six other officers participated in the search leading to the charges against the defendant and independently collected evidence supporting each of the firearm charges, including two handguns and ammunition; they also collected sufficient evidence regarding the cocaine-related charges, including drug trafficking paraphernalia (packaging materials, papers, cutting agents, a scale, and tools with cocaine residue), two cell phones, and currency. See Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 429 (1985) (evidence, consisting of two bottles of cutting powder, wrapping papers, and scale with cocaine residue, sufficient to show possession with intent to distribute). Moreover, the defendant proffered no evidence from his trial counsel regarding whether the evidence would have influenced counsel's recommendation as to whether to accept a particular plea offer. See Commonwealth v. Goodreau, 442 Mass. 341, 354 (2004) (“When weighing the adequacy of the materials submitted in support of a motion for a new trial, the judge may take into account the suspicious failure to provide pertinent information from an expected and available source”). The judge was not required to credit the defendant's affidavit that he would have rejected the plea bargain had he known of the possible impeachment evidence against Bigda. Cf. Commonwealth v. Gilbert, 94 Mass. App. Ct. 168, 178-179 (2018). As the Commonwealth notes (and the defendant does not dispute), given the charges against the defendant, he faced a mandatory minimum of eight years and a maximum of ninety-five years (or life sentence) if he was found guilty on all original charges;⁷ under the plea deal, the defendant received a maximum of four years' incarceration. See Commonwealth v. Grant, 426 Mass. 667, 671 (1998). Finally, even if, as the defendant argues, he could have offered the alleged misconduct to impeach Bigda if called as a Commonwealth witness, without more, “[n]ewly discovered evidence that tends merely to impeach the testimony of a witness does not ordinarily warrant a new trial.” Commonwealth v. Simmons, 417 Mass. 60, 72 (1994).⁸ Accordingly, the judge did not abuse his discretion in denying the defendant's motion for a new trial.⁹

Order denying motion for new trial affirmed.

FOOTNOTES

2.   See Ferrara v. United States, 456 F.3d 278 (1st Cir. 2006); Commonwealth v. Scott, 467 Mass. 336, 344 (2014).

3.   Instead, the defendant maintains that his motion is governed by the standard in Commonwealth v. Shuman, 445 Mass. 268, 271 (2005) (motion for new trial based on new expert information must show that evidence [i] was unknown and not reasonably discoverable at the time of trial and [ii] casts real doubt on justice of conviction in that it is material and credible, and carries measure of strength in support of defendant's position). Shuman did not address a claim of government misconduct.

4.   Contrary to the defendant's contention, the Ferrara-Scott rubric has been applied outside the contexts of the Dookhan scandal. See, e.g., Commonwealth v. Cotto, 471 Mass. 97 (2015) (different chemist's misconduct); United States v. Fisher, 711 F.3d 460 (4th Cir. 2013) (officer's false statement in search warrant application); Ferrara, 456 F.3d at 292 (prosecutor's misrepresentation regarding testimony anticipated from key witness).

5.   In its brief, the Commonwealth asserted that the defendant did not provide either the video or the newspaper articles with his motion. At oral argument, however, the Commonwealth conceded that it does not challenge that each of these exists.

6.   Bigda seized one bag of “crack” cocaine, drug ledgers, one cell phone, and currency. However, the traces of cocaine found as residue on the tools seized from the defendant's home, together with the other incriminating circumstantial evidence, can be sufficient for convictions. See Commonwealth v. Brzezinski, 405 Mass. 401, 409-410 (1989).

7.   These included possession of a large capacity firearm, G. L. c. 269, § 10 (m), and possession of a large capacity firearm during the commission of a felony, G. L. c. 265, § 18B, for which the Commonwealth filed a nolle prosequi as part of the plea agreement.

8.   The defendant's reliance on Conley v. United States, 415 F.3d 183, 188-189 (1st Cir. 2005), and United States v. Martinez-Medina, 279 F.3d 105, 126 (1st Cir. 2002), both of which involved the “more generous” standard of materiality under Brady v. Maryland, 373 U.S. 83, 87 (1963), is misplaced.

9.   Contrary to the defendant's argument, the judge did not abuse his discretion by failing to hold an evidentiary hearing. See Commonwealth v. DeVincent, 421 Mass. 64, 67 (1995). “A judge may make the ruling [on a motion for a new trial] based solely on the affidavits and must hold an evidentiary hearing only if the affidavits or the motion itself raises a ‘substantial issue’ that is supported by a ‘substantial evidentiary showing’ ” (citation omitted). Scott, 467 Mass. at 344. As discussed supra, the defendant failed to make a substantial evidentiary showing.