Commonwealth v. Alexander Henderson.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-162

COMMONWEALTH

vs.

ALEXANDER HENDERSON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant

was convicted of trafficking more than thirty-six grams of

heroin, in violation of G. L. c. 94C, § 32E (c) (2); and

possession with intent to distribute fentanyl, in violation of

G. L. c. 94C, § 32A (a). On appeal, he argues that (1) his

motion to dismiss the indictments due to allegedly lost evidence

should have been allowed, and (2) he is entitled to a new trial

on the ground that he was denied the effective assistance of

counsel. We affirm.

Background. We summarize the facts the jury could have

found reserving additional details for our discussion of the

issues. On February 12, 2018, law enforcement officers executed
a search warrant at a residence located on Cobleigh Street in

Westwood. The defendant and two other individuals, Zachary

Peloquin and William Richardson, were arrested at the scene.

When the police entered the house, they saw the defendant run

from his bedroom across the hall and into the bedroom occupied

by Peloquin where he hid behind a curtain in a closet.

A container of Clorox wipes was on the floor near the

closet. It had a false bottom in which the police found two

plastic bags containing a mixture of heroin and fentanyl with a

combined weight of 75.12 grams. A State police analyst

testified that the bags contained the same cutting agents:

aminopyrine, caffeine, lidocaine, and noramidopyrine-dipyrone.

In the defendant's bedroom, the police found a plastic bag

containing 5.07 grams of heroin and fentanyl on a nightstand and

a can of baking powder near a window. The analyst testified

that the mixture of the drugs contained the same cutting agents

as the other two bags with the exception of lidocaine. There

was no evidence that any of the drugs had been cut with baking

powder (sodium bicarbonate). The police also seized $8,000 in

cash from the closet in the defendant's bedroom. In another

closet, located between the defendant's and Peloquin's bedrooms,

the police found a blender and a digital scale.

Discussion. 1. Motion to dismiss. During the execution

of the search warrant described above, the police tested the

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various substances they seized using a TruNarc machine. The

test results were inconclusive. The Commonwealth presented

evidence to the grand jury1 that the test results were

inconclusive and provided that information to the defendant

during discovery. However, the Commonwealth was not able to

produce underlying documentation in a timely manner because the

TruNarc device the police used had malfunctioned and had been

returned to the manufacturer, Thermo Scientific.

The defendant filed a motion to dismiss, alleging that

exculpatory evidence had been lost or damaged. A judge, who was

not the trial judge, held a hearing during which it came to

light that the documentation at issue had been retrieved from

the machine by its manufacturer, Thermo Scientific, and was now

available for inspection. Thus, as the motion judge found, the

evidence was no longer lost. Although all the requested

documentation was ultimately produced, the judge determined that

the defendant "ha[d] been prejudiced to a certain extent," and

he ordered that the defendant "be given a wide latitude at trial

with respect to eliciting information about the delay in being

provided the TruNarc inconclusive tests, the purported reason

1 We acknowledge that the grand jury minutes remain
impounded and discuss them only as necessary to resolve this
appeal.

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for the delay as well as inquiry into the chain of custody of

the TruNarc tests."

The judge did not err in denying the motion to dismiss.

Ultimately, the evidence was not lost and, as the judge

explicitly noted, the evidence was not "withheld purposefully."

Furthermore, the judge fashioned an effective remedy for the

delay in the disclosure of the evidence, which was sufficient to

negate any prejudice to the defendant. See Commonwealth v.

Moore, 480 Mass. 799, 811 (2018), quoting Commonwealth v.

Harwood, 432 Mass. 290, 302 (2000) ("Our courts have [properly]

fashioned or upheld various judicial remedies for the loss of

evidence").

2. Ineffective assistance of counsel. The defendant's

primary defense at trial was that he possessed the drugs found

in the home for his personal use and was not guilty of

trafficking or intending to distribute heroin and fentanyl. To

that end, the defendant attempted to distance himself from

evidence that supported the Commonwealth's theory that the

search warrant had uncovered a drug distribution scheme in which

the defendant participated by preparing the drugs for sale by

cutting or diluting them with various agents. In closing

argument, defense counsel referred to the can of baking powder

found in the defendant's bedroom and asked the jury to look at

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the drug certificate, which he claimed showed the absence of

sodium bicarbonate. Counsel stated:

"Look at the drug certificate. Sodium bicarbonate.
There's no sodium bicarbonate in there. They want us to
believe oh, they're diluting the drugs. They're making
profit. Mr. Henderson is making profit. We found the
baking powder in his room. He's guilty. No. The drugs
don't have sodium bicarbonate in them. Mr. Peloquin is
doing the drugs out of a paper fold, tiny little amount.
That's tested. There's no sodium bicarbonate in there
either."

However, the drug certificate in question had not been

introduced in evidence when the analyst testified.2 This fact

came to light when the jury sent a question to the judge asking

if they could see the drug certificate.3 Defense counsel told

the judge:

"I said in my closing about the difference in sodium
bicarbonate because I [was] acting in good faith belief
that [the drug certificate] was [in evidence]. When we
look at it, somehow, it's not there. Somehow, I didn't see

2 The confusion stemmed from the fact that the substances
initially were examined in May 2018 by an analyst (Kimberly
Dunlap) who was no longer employed by the State police crime
laboratory at the time of trial. The substances were
resubmitted for analysis in 2022. That analysis was conducted
by Caroline Tatro, a forensic scientist who was also the drug
unit supervisor for the State drug lab located in Springfield.
In 2022, Tatro reweighed the substances and generated a
certificate of her report regarding her findings. She did not
conduct any additional analysis or testing to identify the
substances, rather she relied upon the original analysis that
had been completed in 2018. The only certificate admitted in
evidence was the one prepared by Tatro.

3 More specifically, the jury asked to "see and review
Caroline Tatro's chemical analysis report from 2018 performed by
Kimberly Dunlap."

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it right, read it right, and I missed it, but it's
absolutely ineffective assistance of counsel. This is not
a strategic decision. This is not a planned intentional
decision . . . the jury should have the benefit of the
original report."

After some discussion, the judge and the parties listened to the

recording of the analyst's testimony. The judge noted that the

analyst had listed all the cutting agents detected in the drug

mixtures. She had not listed baking powder or sodium

bicarbonate as one of them.4 Defense counsel acknowledged that

the jury heard this information "a few times." Because the jury

had the information to which defense counsel had referred,

albeit "not in written form, but had it in testimonial form,"

the judge concluded that there was no ineffective assistance of

counsel. The judge reasoned:

"It seems to me that [the analyst] did cover all the
compounds that were mentioned, both the control substances
and the specific names for the dilutants, so I think the
jury heard what it needs to hear, and I don't think there's
any ineffective assistance issue."

The judge then informed the parties that if the jury asked for

it, he was inclined to provide them with the portion of the

testimony relating to the presence of cutting agents in the

4 The analyst testified that three items were submitted for
analysis. The first two items, found on the defendant's
nightstand and in the Clorox container consisted of heroin,
fentanyl, acetyl fentanyl, caffeine, aminopyrine, lidocaine, and
noramidopyrine-dipyrone. The third item was taken from a bag in
Peloquin's room and contained the same substances as the first
two, except it did not contain lidocaine.

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heroin and fentanyl mixtures, but that he would not do so

without a request.

The defendant argues, as he did before the trial judge,

that his error deprived the defendant of his right to the

effective assistance of counsel and, consequently, he is

entitled to a new trial. We first address the question whether

the defendant's claim can be resolved on direct appeal. A claim

of ineffective assistance "may be resolved on direct appeal, as

opposed to on a motion for new trial, only where 'the factual

basis of the claim appears indisputably on the trial record.'"

Commonwealth v. Ryan, 93 Mass. App. Ct. 486, 494 (2018), quoting

Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). We have

conducted a careful review of the record and conclude that it

provides a sufficient basis on which the defendant's claim can

be resolved.

We now turn to the merits of the claim. To sustain his

burden, the defendant must first show "behavior of counsel

falling measurably below that which might be expected from an

ordinary fallible lawyer," and second, "whether it has likely

deprived the defendant of an otherwise available, substantial

ground of defen[s]e." Commonwealth v. Saferian, 366 Mass. 89,

96 (1974). Even if we were to assume that defense counsel's

mistaken belief that the drug certificate (generated by the

first analyst) had been admitted in evidence amounts to conduct

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which satisfies the first requirement under the Saferian test,

the defendant has not met his burden of demonstrating that he

was likely deprived of an otherwise available defense. To the

contrary, as the judge observed, evidence of the absence of

sodium bicarbonate in the drugs on which the convictions were

based was presented to the jury. And, in response to the jury's

question, the judge told the jury that "[t]he Rules of Evidence

say that what comes in during the trial, that's the evidence for

the jury to consider. . . . I can't supplement the evidence

once it's closed. . . . You will need to rely on your memory

of any testimony about that 2018 chemical analysis report." We

assume, as we must, that the jury followed these instructions.

See Commonwealth v. Berry, 466 Mass. 763, 770 (2014).

Additionally, in concluding that there was no ineffective

assistance of counsel because the result of the trial would not

have been different, we have considered the compelling evidence

against the defendant. Not only was the quantity of the drugs

found in the residence inconsistent with personal use, but the

defendant had large amounts of cash ($8,000) in his bedroom

closet and other items associated with the distribution of

narcotics (a scale, a blender, and "baggies" typically used for

packaging drugs for sale) were found in the residence at the

time the search warrant was executed. The defendant also

attempted to hide when the police entered the home thereby

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indicating a consciousness of guilt. In sum, the record does

not support the defendant's claim that he was deprived of the

effective assistance of counsel.

Judgments affirmed.

By the Court (Vuono,
Brennan & D'Angelo, JJ.5),

Clerk

Entered: April 10, 2025.

5 The panelists are listed in order of seniority.

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