Massachusetts Supreme Judicial / Appeals Courts
COMMONWEALTH v. DOYLE, 05-P-847 (Mass.App.Ct. 12-21-2006)
COMMONWEALTH v. James DOYLE. No. 05-P-847. Appeals Court
of Massachusetts. May 12, 2006. December 21, 2006.
Present: GREENBERG, LAURENCE, & GRAHAM, JJ.
Controlled Substances. Entrapment. Practice, Criminal, New
trial, Instructions to jury, Hearsay. Evidence, Hearsay,
Relevancy and materiality.
INDICTMENT found and returned in the Superior Court
Department on September 27, 2001
The case was tried before Tina S. Page, J., and a motion
for a new trial was heard by her.
Anthony J. Siciliano for the defendant.
Matthew J. Shea, Assistant Attorney General, for the
Commonwealth.
LAURENCE, J.
On December 15, 2003, a jury in Superior Court found the
defendant, James Doyle, guilty of having trafficked in
cocaine in an amount greater than fourteen grams but less
than twenty-eight grams on July 8, 1999.[fn1] On January 9,
2004, the defendant filed a motion for a new trial, which
the motion judge (who was also the trial judge) denied
without a hearing on May 20, 2005. The defendant, who relied
on an entrapment defense at trial, here contends (appealing
both his conviction and the denial of his motion for a new
trial) that the judge should have granted him a new trial
on the grounds that she had erred at trial by (1) refusing
to direct a verdict of not guilty because the Commonwealth
failed to present sufficient evidence to prove that he was
predisposed to commit the crime charged beyond a reasonable
doubt; (2) refusing to give a requested jury instruction on
the role of a government informant in an entrapment case;
(3) refusing to admit the government informant’s hearsay
statement concerning his motive to work for the Federal
Bureau of Investigation (FBI); and (4) refusing to permit
the admission of evidence concerning the circumstances of
the government informant’s death. We affirm the denial of
the defendant’s motion for a new trial as well as the
judgment.
Background. The jury could have permissibly found the
following pertinent facts favorable to the
Commonwealth.[fn2] In 1999, State Trooper Thomas Nartowicz
was assigned, in an undercover capacity, to an FBI task
force that was investigating local motorcycle clubs
suspected of selling narcotics. The task force used a
cooperating informant named William Donais to introduce
Nartowicz to members of the Longriders Motorcycle Club
(Longriders Club) in Ludlow. Donais had previously
infiltrated the Longriders Club for the task force, in
January, 1998, to determine whether illegal drugs were
being sold there. At trial, it was established that Donais
had agreed to cooperate with the authorities after being
arrested for a traffic incident.[fn3] The government paid
Donais in excess of $100,000 for his work over a period of
several years (through early 2001), and he received other
benefits, including housing and a motor vehicle.[fn4]
During the course of the investigation, Donais introduced
Nartowicz to the defendant, who was a former president of
the Longriders Club. Shortly thereafter, on June 4, 1999,
Nartowicz attempted to arrange a $500 purchase of cocaine
from the defendant at the Longriders Club’s clubhouse,
using Donais as an intermediary.[fn5] Although the
defendant was unable to obtain cocaine at that time, he
directed Nartowicz (but not Donais) to join him in the
clubhouse’s bathroom. There, after locking the door, he
gave Nartowicz his money back and chastised him for not
giving the defendant more time to procure the cocaine. The
defendant also informed Nartowicz that he did not do
business over the telephone, and that if anyone refers to
anything (which Nartowicz understood to mean cocaine) over
the telephone, he hangs up. The defendant assured
Nartowicz, however, that he could probably obtain
“something” (which Nartowicz again took to mean cocaine) to
sell to him later that same night. Nartowicz declined the
offer on the ground that he could not wait around at that
time, but said that he might contact the defendant through
Donais in the future.
On July 8, 1999, Nartowicz again met Donais and the
defendant at the Longriders Club’s clubhouse to buy
cocaine. After securing the premises, the defendant asked
Nartowicz for $650 as the price for his cocaine. When
Nartowicz protested the increased price, the defendant
explained that the price for the cocaine was higher
“because he was getting it from a different guy now; and
that the . . . other guy was in jail and they [the police]
were attempting to deport him.” After Nartowicz paid the
defendant the $650, the defendant told Nartowicz that he was
meeting his new cocaine supplier at 8:30 P.M., and that
Nartowicz could meet him later to receive the “stuff” at
Christy’s bar in Springfield.
Later that night, Nartowicz went alone to Christy’s bar and
waited for the defendant. The defendant eventually arrived,
sat down next to Nartowicz and, with a smile, told him that
he “was going to like the stuff that he [the defendant]
had,” referring to the cocaine. After finishing a beer, the
defendant said he was “ready” and directed Nartowicz
outside, where the defendant deposited the cocaine, wrapped
in a package, into Nartowicz’s saddlebag on the side of
his motorcycle.[fn6] The defendant cautioned Nartowicz to
drive carefully with the “stuff” and told Nartowicz that
they could make the transaction a “weekly thing.” Nartowicz
responded that he hoped the price would be reduced if they
did arrange for a weekly purchase. The defendant then
remarked that “the price fluctuates.” Donais was not present
at Christy’s that night. (At trial, Nartowicz identified
the package he had received from the defendant, which he
had turned over to a fellow officer soon after receiving it
for laboratory analysis; the analysis disclosed the powder
in the package to be seventeen percent cocaine).
On October 9, 1999, Nartowicz attended a social event
sponsored by the Longriders Club at the American Legion
hall in Chicopee. Again, Donais was not present. The
defendant approached Nartowicz and asked where he had been
lately. After Nartowicz responded that he had been
“around,” the defendant replied, “I thought we were going
to do more business” (referring to the July 8 cocaine sale,
the only “business” Nartowicz had ever conducted with the
defendant). Nartowicz did not converse or interact further
with the defendant thereafter. The defendant was indicted
on September 27, 2001, for the July 8, 1999, sale of cocaine
to Nartowicz.
At trial, the defendant relied on an entrapment defense,
arguing that the government, through its agent, Donais, had
induced him to sell cocaine. He contended that he had
undergone rehabilitation for a cocaine addiction in 1997
and was no longer addicted or predisposed to use or sell
cocaine at the time that the government, through Donais,
infiltrated the Longriders Club in January, 1998. The
defense offered numerous witnesses (all friends and
associates of the defendant) who testified about Donais’s
persistent attempts to persuade the defendant to use and
procure cocaine and about Donais’s “intimidating [physical]
appearance.”[fn7] The defense also presented evidence that
Donais was a cocaine addict. However, the judge refused to
admit evidence showing that the cause of Donais’s death in
2003 resulted from an overdose of cocaine.[fn8]
Discussion. Entrapment. The defendant principally argues
that his new trial motion should have been allowed because
the judge erred in refusing to direct a verdict in his
favor, asserting that the Commonwealth failed to prove his
predisposition to engage in cocaine trafficking beyond a
reasonable doubt prior to his interaction with a government
agent. In other words, he contends that his entrapment
defense should have succeeded as matter of law because the
Commonwealth failed to prove that he possessed the
requisite criminal intent to sell drugs independent of the
government’s inducement. He relies on the established
proposition that entrapment occurs “when the criminal
design originates with the officials of the Government, and
they implant in the mind of an innocent person the
disposition to commit the alleged offense and induce its
commission in order that they may prosecute.” Sorrells v.
United States, 287 U.S. 435, 442 (1932).
In order for an entrapment defense to be raised, evidence
of inducement by a government agent must be presented at
trial. Commonwealth v. Koulouris, 406 Mass. 281, 284
(1989). “Mere evidence of solicitation is not enough to
show inducement,” ibid., quoting from Commonwealth v.
Miller, 361 Mass. 644, 651-652 (1972), and, as the Supreme
Judicial Court has noted, “[a]rtifice and stratagem may be
employed [by the government] to bring to book those engaged
in crime.” Commonwealth v. Harvard, 356 Mass. 452, 459
(1969), citing Sorrells v. United States, supra at 441. See
Commonwealth v. Colon, 33 Mass.App.Ct. 304, 306 (1992) (“It
is not unlawful for the government to set out bait for
someone who takes the lure with alacrity”). The defendant
did, however, offer sufficient evidence to meet the low
threshold entitling him to an instruction on entrapment
simply by testifying that Donais, a government agent,
induced him to sell the drugs to Nartowicz. See
Commonwealth v. Miller, 361 Mass. at 651-652.[fn9]
Once an entrapment defense is adequately raised, the
prosecution is required to prove beyond a reasonable doubt
that the defendant was already predisposed to commit the
crime. See Mathews v. United States, 485 U.S. 58, 62-63
(1988); Commonwealth v. Miller, 361 Mass. at 652;
Commonwealth v. Thompson, 382 Mass. 379, 383-386 (1981);
Commonwealth v. Shuman, 391 Mass. 345, 351 (1984). The
central inquiry then becomes, “[W]as the defendant,
initially not ready or willing to break the law, enticed or
ensnared by the Commonwealth into overcoming his reluctance
or resistance and doing so? Or did the Commonwealth merely
provide the defendant, already ready and willing —
already `predisposed’ — to commit the crime, an
opportunity to do so?” Commonwealth v. LaBonte, 25
Mass.App.Ct. 190, 194 (1987). Predisposition may thus be
found upon proof that “the accused [was] ready and willing
to commit the crime whenever the opportunity might be
afforded,” Commonwealth v. Miller, 361 Mass. at 651,
quoting from United States v. Groessel, 440 F.2d 602, 605
(5th Cir.), cert. denied, 403 U.S. 933 (1971), and the
finding can be based upon the “[words and] conduct of the
defendant as related to the indictment at issue [during his
meetings with the undercover officer] . . . if the evidence
is of sufficient significance.” Id. at 652.[fn10]
The Commonwealth’s evidence — particularly that
which exposed the defendant’s manifested willingness to
engage in a drug transaction on June 4, 1999, and admitted
ability to obtain drugs on short notice at that time
— if believed, negated any rational inference that
when the defendant sold the cocaine to Nartowicz on July 8,
1999, he lacked predisposition because he was “an innocent
party . . . beguile[d] . . . into committing crimes which
he otherwise would not have attempted,” Sherman v. United
States, 356 U.S. 369, 376 (1958); or “that he acted out of
fear,” Commonwealth v. Tracey, 416 Mass. 528, 537 (1993); or
that he acted only in response to “[the informant’s]
presumed suffering” or other importuning by the informant
that “play[ed] on sympathy or other emotion,” Commonwealth
v. Thompson, 382 Mass. at 385 (quotations omitted); or that
he was subject to inducements that were “shocking or
offensive per se,” or was effectively “corrupted” by the
government’s undercover activities, Commonwealth v.
Harvard, 356 Mass. at 460, quoting from Waker v. United
States, 344 F.2d 795, 796 (1st Cir.1965); or that he was
enmeshed by “methods so outrageous or wicked as to deny him
due process,” Commonwealth v. LaBonte, 25 Mass.App.Ct. at
195; or that he was reluctantly “persuade[d] . . . `to turn
`from a righteous path to an iniquitous one.'” United
States v. Gifford, 17 F.3d 462, 468 (1st Cir.1994), quoting
from United States v. Coady, 809 F.2d 119, 122 (1st
Cir.1987).
Moreover, the jury were not required to believe the “very
feeble” (Commonwealth v. LaBonte, 25 Mass.App.Ct. at 195)
defense version of events
[fn11] regarding the defendant’s purported lack of
predisposition[fn12] to sell drugs on July 8, 1999, and
were entitled to discredit any or all of the defendant’s
and his witnesses’ testimony to the effect that (a) Donais
readdicted the defendant around October, 1998, by
providing him with cocaine and joining him in its
consumption; (b) Donais thereafter persisted in
frequently asking, even imploring, him to procure cocaine
for them to share, which the defendant adamantly refused
to do (on one occasion vociferously and publicly) until
June 4, 1999, when he reluctantly agreed to do so with
$100 of his own money and $35 from Donais; (c) the
defendant could find no cocaine to buy that evening and
tried to return Donais’s money in the clubhouse bathroom,
where he found Nartowicz (going under the alias
“Vinny”), who claimed that it was his, and not Donais’s,
money and whose request that the defendant still try to
obtain some cocaine that night the defendant firmly
rejected; (d) the defendant at no time agreed with “Vinny”
or Donais to purchase cocaine for or sell cocaine to
“Vinny”; (e) on July 8, 1999, after again reluctantly
agreeing with Donais to try to procure cocaine, with $500
of his own money, in order to share it with Donais, and
after finding some at a certain person’s home, the
defendant went to Christy’s bar to meet Donais but
instead encountered “Vinny,” whose loud and boisterous
demand that he turn over the drugs “spooked,” “scared,”
and “panicked” the defendant, who precipitously took
“Vinny’s” offered money, “threw the stuff in his
[“Vinny’s”] [saddle]bag and . . . took off” because he
“felt under the gun.”[fn13]
The prosecution, for its part, presented compelling
evidence of the defendant’s predisposition to commit the
crime charged, when viewed (as the judge was obliged to do
in acting on the defendant’s motions for required findings
of not guilty) in the light most favorable to the
Commonwealth. See Commonwealth v. Monteagudo, 427 Mass. 484,
488 (1998). His exchanges with Nartowicz on June 4, 1999,
and July 8, 1999, demonstrated a level of drug dealing
experience, ability, sophistication, and eagerness that
contradicted any impression that the government had
corrupted an “innocent mind.” Massachusetts courts have
recognized a variety of activities as being strong evidence
of a narcotics defendant’s predisposition, including the
ability to procure illegal drugs for sale on short notice
(see Commonwealth v. LaBonte, 25 Mass.App.Ct. at 194;
Commonwealth v. Gratereaux, 49 Mass.App.Ct. 1, 3 [2000];
Commonwealth v. Remedor, 52 Mass.App.Ct. 694, 704 [2001] );
familiarity with the terms of the drug trade and with
market conditions in that trade (see Commonwealth v.
LaBonte, supra; Commonwealth v. Gratereaux, supra;
Commonwealth v. Remedor, supra ); haggling over the price
of illegal drugs (see Commonwealth v. LaBonte, supra at
191, 194; Commonwealth v. Colon, 33 Mass.App.Ct. at 306);
discussion of having a continuing drug transaction
relationship or future drug sales (see Commonwealth v.
LaBonte, supra at 191; Commonwealth v. Colon, supra at 306;
Commonwealth v. Gratereaux, supra ); and committing the
crime “readily and without reluctance,” see Commonwealth v.
Monteagudo, supra; Commonwealth v. Remedor, supra. Here,
the defendant manifested every one of those indicia of
predisposition. As earlier noted, “[i]t is not unlawful for
the government to set out bait for someone who takes the
lure with alacrity.” Commonwealth v. Colon, supra.
Contrary to the defendant’s assertion that he was always
reluctant and was effectively coerced into selling cocaine
to Nartowicz, the prosecution’s evidence established (if
believed) that at the time the police were investigating
him, the defendant was already engaging in the drug
business, took precautions to avoid police detection, and
had already dealt with several sources of supply from which
he could readily procure cocaine — powerful evidence
that he was engaged in narcotics dealings with others that
had nothing to do with the government. As Nartowicz
testified, the defendant refused to discuss business over
the telephone and was conversant with the fluctuating price
of cocaine. Further, during the bathroom meeting with
Nartowicz on June 4, 1999 — when the defendant took
pains to lock the door and to exclude Donais — the
defendant made an offer, without the slightest solicitation,
to obtain and sell Nartowicz cocaine in the immediate
future (since he had failed to procure cocaine earlier that
evening), strong evidence of his enthusiastic
predisposition. Finally, the defendant’s conduct during the
July 8, 1999, transaction — refusing to negotiate a
lower price (thus reflecting a purpose to maximize his
profit from the transaction), offering to make regular,
“weekly” cocaine sales to Nartowicz, and continuing to
present the demeanor of one in complete charge of the drug
deal — was uniformly inconsistent with his feeble
story of either acting out of a desperate effort to avoid
pressure from Donais or having his will so dominated that
he could not help himself.[fn14]
When considering a claim that the prosecution has failed to
prove lack of predisposition beyond a reasonable doubt, the
court must view the evidence in the light most favorable to
the Commonwealth in order to determine whether a rational
jury could have returned a guilty verdict. See Commonwealth
v. Monteagudo, 427 Mass. at 488, citing Commonwealth v.
James, 424 Mass. 770, 784-785 (1997). See also Commonwealth
v. Colon, 33 Mass.App.Ct. at 306. Here, it is clear to us
that a rational jury could have credited the Commonwealth’s
evidence as amply sufficient to find the defendant guilty
of trafficking in cocaine on July 8, 1999, because that
evidence overwhelmingly demonstrated his predisposition to
commit the crime.
The defendant attempts to overcome this reality by reliance
on a statement taken out of context from the
distinguishable case of Jacobson v. United States, 503 U.S.
540, 549 (1992), which he claims established the supposed
principle that the Commonwealth must prove beyond a
reasonable doubt that “the defendant was disposed to commit
the criminal act prior to first being approached by
Government agents.” We are unpersuaded. The literalness
that the defendant ascribes to those words was clearly
modified by the Jacobson Court’s example and statement
(made immediately after the quoted passage) that a
defendant’s “ready commission of the criminal act,” after
being offered the opportunity to sell drugs and accepting
the offer, “amply demonstrates the defendant’s
predisposition.” Id. at 549-550. That example is the very
situation involved here, where the defendant not only
enthusiastically accepted the chance to sell cocaine to a
new customer, but spoke freely about his general practices
in and knowledge of the drug trade, including taking the
precaution of never doing business over telephones, doing
business behind locked doors, and staying abreast of price
fluctuations for cocaine, as well as having ready access to
multiple drug suppliers. The Jacobson Court’s explicit
endorsement of the Federal government’s investigatory
guidelines for offering suspects an inducement to commit a
crime similarly finds application here,[fn15] and the
radically different facts in Jacobson further undercut the
defendant’s attempted application of that case to his
situation.[fn16] Under the core teaching of Jacobson, the
jury were free to disbelieve the defendant’s version of
events and to adopt the Commonwealth’s evidence of his
predisposition to commit the crime charged. Such an
inference could be permissibly and readily drawn from the
circumstances of the defendant’s attempted sale to
Nartowicz on June 4, 1999, his “ready commission” of the
actual cocaine transaction on July 8, 1999, his stated
willingness to continue to make such sales on a weekly
basis, and his seeking out Nartowicz on October 9, 1999, to
express apparent surprise and regret that more cocaine
transactions had not ensued between them.[fn17] Viewing the
evidence in the light most favorable to the Commonwealth, we
see no error in the judge’s denial of the defendant’s
motions for required findings of not guilty and for a new
trial, to the extent they depended on his entrapment
defense.
Jury instruction. A related but secondary contention is
the defendant’s complaint that the judge erred in refusing
to give his requested jury instruction on the role of
government agents in entrapment cases, on the ground that
the standard Massachusetts instruction as given the jury by
the judge contained no provision on inducement by
government informants. (It is, of course, settled law that
a defendant is not entitled to have an instruction phrased
in the exact language he requests so long as the charge,
taken as a whole, adequately conveys to the jury the
applicable legal requirements. See Commonwealth v. Riley,
433 Mass. 266, 271 [2001] ).
The judge correctly instructed the jury in the words of the
Superior Court Criminal Practice Jury Instructions §
3.4 (1999), as follows:
“The defendant contends that a government agent or someone
acting at the agent’s discretion induced him into
committing trafficking [sic ] cocaine. There is nothing
improper about the police setting traps, such as with
undercover methods, to catch those who are already disposed
towards committing a crime. However, the state cannot
tolerate having its officers instigate crime by implanting
criminal ideas in innocent minds. The issue is not whether
the government agent brought about this particular offense,
but rather, whether the government agent brought about this
defendant’s predisposition to the crime. No entrapment
exists if a person is ready and willing to commit a crime
whenever the opportunity presents itself and a government
agent merely provides the opportunity or facilities to do
so.”[fn18] (Emphasis added).
After the judge had completed her charge, defense counsel,
without objecting to any part thereof, requested that the
court “consider” a further instruction on the role of
government informants in entrapment cases, specifically
that “government inducement may be offered [through] a
cooperating informant acting at the direction of a
government agent.” The judge said that she thought her
instruction as given was adequate, to which defense counsel
responded, “Thank you.”[fn19]
Contrary to the defendant’s assertion on appeal, he did not
make or preserve an objection to this portion of the
judge’s charge. That fact, combined with his failure to
present any arguments that the judge’s action constituted
an abuse of discretion (see note 25, infra ) or created a
substantial risk of a miscarriage of justice, dooms his
contention.[fn20]
In any event, the defendant’s stated concern — that
the jury would have been so misled by the instruction as to
focus solely on the conduct of the government officials and
not on the conduct of the government informant, Donais, in
considering whether the criminal design had been implanted
in the defendant’s mind — is implausible. The jury
could not have failed to have been aware, from the
defendant’s and his witnesses’ testimony as well as that of
the drug task force officers, that Donais was a government
informant acting at police direction to facilitate
Nartowicz’s introduction to and dealings with the defendant.
Moreover, reasonable jurors could not have failed to
understand from the judge’s instructions, as applied to the
facts of the case, that the issue of entrapment was to be
determined by reference to the conduct of either “a
government agent or someone [i.e., Donais] acting at the
government agent’s discretion” (emphasis added) —
clear guidance that was plainly stated by the judge at the
beginning of the charge on entrapment.
Government informant’s hearsay statements. The defendant
also argues that the judge erred in refusing to admit
statements allegedly made by Donais in 2000 to his then
girlfriend, subsequent to the crime charged, explaining why
he became a government informant. At trial, the defense had
sought to offer testimony from Donais’ girlfriend that
Donais had told her that he became associated with the FBI
after a gun he had sold was implicated in a murder in
Hartford, Connecticut, and that the FBI threatened to
prosecute him for the crime if he did not cooperate with
them.
Faced with a “rank hearsay” objection from the prosecutor,
defense counsel argued to the judge (during voir dire on
the subject) that the testimony was offered solely as
nonhearsay proof of Donais’s “desperate” state of mind,
which motivated his unremitting efforts to entrap the
defendant, rather than for the truth of the facts asserted.
The judge nonetheless refused to admit the evidence on the
grounds that it was both cumulative and irrelevant. The
defendant has failed to assert, much less establish, any
abuse of the judge’s broad discretion (see note 25, infra )
in deciding whether evidence is relevant, see Commonwealth
v. Young, 382 Mass. 448, 463 (1981); Commonwealth v. Tobin,
392 Mass. 604, 613 (1984), or cumulative. See Commonwealth
v. Urrea, 443 Mass. 530, 544 (2005).[fn21]
Instead, the defendant presents us with an argument, not
made below, that is essentially inconsistent with the
rationale he proposed to the judge for admission of the
girlfriend’s proffered statement. Relying on the Supreme
Judicial Court’s holding in Ruszcyk v. Secretary of Pub.
Safety, 401 Mass. 418 (1988), he now claims that the
statement should have been permitted as a hearsay exception
because it was a vicarious admission, a statement by an
agent binding his principal (here, the Commonwealth) that
demonstrated why Donais went to such lengths to lure the
defendant into committing the crime.
His effort is unavailing. A party who has made an objection
to a judge’s ruling on an evidentiary matter at trial after
specifically stating the ground therefor is not entitled to
urge different grounds on appeal of the court’s overruling
of the objection. See Commonwealth v. Tyree, 387 Mass. 191,
213 (1982), cert. denied, 459 U.S. 1175 (1983);
Commonwealth v. Noeun Sok, 439 Mass. 428, 435 (2003);
Commonwealth v. Seap Sa, 58 Mass.App.Ct. 420, 427 (2003).
Moreover, even were the defendant’s reliance on Ruszcyk
properly before us, it is misplaced. In that case, the
court abrogated the common-law rule excluding admissions of
an agent against his principal unless the agent’s actual
authority to make the statement was established. Ruszcyk v.
Secretary of Pub. Safety, 401 Mass. at 422-423. Instead,
the court allowed the introduction of such statements if
there were evidence that making them was within the scope
of the agent’s employment, subject to the trial judge’s
discretion to exclude them if their probative value was
substantially outweighed by the danger of unfair prejudice
to the opposing party (to be determined on a case by case
basis). Ibid. Here, the proffered testimony was not shown to
relate to any matter within the scope of Donais’s agency
with the FBI, but rather addressed only the issue how the
agency relationship had (allegedly) come about in the first
place.[fn22]
Death of William Donais. The defendant’s final claim on
appeal is that the judge erred in refusing to admit
evidence of Donais’s death, allegedly from a cocaine
overdose in October, 2003, which the defendant offered to
prove by means of a certified copy of an autopsy report
from the medical examiner in Jacksonville, Florida.[fn23]
The judge agreed with the Commonwealth that the
circumstances of Donais’s death were too remote to be
probative and, in any event, were irrelevant to the trial
issues.[fn24]
Again, the defendant essays no argument that the judge’s
ruling constituted an abuse of her wide discretion to
determine the relevance of evidence and whether it was too
remote. See Commonwealth v. Tobin, 392 Mass. at 613;
Commonwealth v. Freeman, 430 Mass. 111, 116 (1999). The
exercise of such discretion is accorded substantial
deference by appellate courts in the absence of a clear
showing (not made here) of its abuse — a very heavy
burden
[fn25] — or palpable error, i.e., a decision that
clearly transcends “the outer bounds of . . . discretion.”
Commonwealth v. Bonds, 445 Mass. 821, 835 (2006).[fn26] We
are persuaded that evidence of Donais’s death —
over four years after the date of the crime for which the
defendant was indicted and two years after Donais had
ceased to be a government agent — had such an
attenuated relation to the defendant’s trial as to justify
the judge’s implicit conclusion that it had little, if
any, rational tendency to prove a material issue in the
case against the defendant.[fn27] Cf. Commonwealth v.
Santiago, 425 Mass. 491, 494-497 (1997) (judge abused
discretion by permitting repeated references in
prosecutor’s closing argument to victim’s pregnancy and
birthday, and by permitting victim’s sister to testify
about her hospital vigil prior to victim’s death, because
they were not relevant to any issue in case).
Judgment affirmed.
Order denying defendant’s motion for new trial affirmed.
[fn1] The trial judge sentenced the defendant to three years
in State prison. The judge had initially imposed a longer
sentence but reduced it after granting the defendant’s
motion to revise and revoke the sentence.
[fn2] See Commonwealth v. Latimore, 378 Mass. 671, 677-678
(1979); Commonwealth v. Conkey, 443 Mass. 60, 72 (2004).
These facts are also drawn from the judge’s findings in her
May 19, 2005, memorandum of decision and order on the
defendant’s motion for a new trial.
[fn3] The defendant countered that Donais actually began
working for the police after a gun that he had owned was
implicated in a murder in Hartford, Connecticut. However,
the judge refused to admit this alleged information, as it
was based on unreliable and prejudicial hearsay that was
both irrelevant and essentially cumulative. See discussion,
infra.
[fn4] Donais also received a motorcycle, which was necessary
to maintain his role as a member of the Longriders Club.
[fn5] Donais, having infiltrated the Longriders Club over a
year earlier, was already a trusted club member at this
time. Nartowicz testified that the defendant was not the
sole focus of his or the task force’s investigations, which
were also directed at other Longriders Club’s members, and
that both he and Donais purchased cocaine from others in
transactions that had nothing to do with the defendant.
[fn6] Nartowicz rode a motorcycle to maintain his cover as a
prospective member of the Longriders Club.
[fn7] Donais was described as “6’3 . . . 360 pounds.” The
Commonwealth presented evidence that Donais neither coerced
nor intimidated the defendant, and the defendant’s own
witnesses also testified to his uniform resistance to
Donais’s alleged efforts to persuade the defendant to
obtain cocaine for Donais until June, 1999. The defendant,
himself, testified that Donais simply “ask [ed]” him if he
wanted cocaine or would buy cocaine (albeit whenever he
would see Donais), and admitted that on at least one
occasion, he vigorously rebuffed Donais’s solicitation to
procure cocaine (“I chewed him out. I read him the riot
act”).
[fn8] At that time Donais had relocated to Florida. See
discussion, infra.
[fn9] The defendant claimed that Donais caused him to become
re-addicted to cocaine after he had gone through drug
rehabilitation for cocaine addiction, and then pressured
him in June and July, 1999, to obtain cocaine in order to
satisfy Donais’s and his own alleged renewed addiction. He
denied that he had ever agreed to sell anything to
Nartowicz. This satisfied the minimal burden a defendant
must meet in order to be entitled to an entrapment
instruction, even when the evidence of inducement is
insubstantial and self-serving, or even implausible. See
Commonwealth v. Tracey, 416 Mass. 528, 536 (1993).
[fn10] The government activities that the courts are
typically presented with as entrapment-producing
“inducements” — “`lengthy negotiations . . .,
aggressive persuasion . . ., coercive encouragement . . .
[or] repeated or persistent solicitations’ of the
defendant,” Commonwealth v. Shuman, 391 Mass. at 352,
quoting from Commonwealth v. Thompson, 382 Mass. at 385
— did not occur during the defendant’s dealing with
Nartowicz, and even Donais’s alleged “persistent
solicitations” did not, until June, 1999, involve efforts to
induce the defendant to sell cocaine to anyone, much less a
government agent. See note 7, supra.
[fn11] Entrapment, when properly raised, is a jury issue, as
part of the jury’s function of determining guilt or
innocence, see Sherman v. United States, 356 U.S. at 377;
Commonwealth v. Shuman, 391 Mass. at 351, and the jury are
the appropriate arbiters of credibility. See Commonwealth
v. James, 424 Mass. 770, 785 (1997); Commonwealth v.
Hanlon, 44 Mass.App.Ct. 810, 815 (1998).
[fn12] Inducement and predisposition are separate, though
interrelated and mutually dependent, prongs of the
entrapment doctrine. See, e.g., United States v. Gendron,
18 F.3d 955, 960 (1st Cir.), cert. denied, 512 U.S. 1051
(1994); United States v. Poehlman, 217 F.3d 692, 698 (9th
Cir.2000).
[fn13] When asked why he gave “Vinny” the “stuff” instead of
simply telling him that he had none, the defendant could
only answer, “I don’t know. I really don’t know. I can’t
say.” Under the defendant’s own account, the evidence of
inducement was extremely thin, particularly in light of the
defendant’s status as a past president of the Longriders
Club, who was in a position at all times to have Donais
disciplined for possessing, using, or trying to acquire
cocaine in the clubhouse, acts which were allegedly serious
violations of club policy.
[fn14] Additional evidence of the defendant’s ongoing
predisposition can be seen in the encounter between the
defendant and Nartowicz at a Longriders Club’s social event
in October, 1999 (where Donais again was not present). The
defendant sought out Nartowicz and asked him where he had
been lately. The defendant remarked that he thought they
“were going to be doing more business” after July 8, 1999
(which had been the only “business” the two had ever
transacted), with what could be rationally inferred as
surprise and regret that more cocaine sales had not
transpired — an attitude consistent with the behavior
of one selling drugs as a business, not a corrupted
innocent whose will had been overcome.
[fn15] The United States Supreme Court observed that its
holding in Jacobson “in no way encroaches upon Government
investigatory activities,” under guidelines that permitted
such inducement where “(a) [T]here is a reasonable
indication, based on information developed through
informants or other means, that the subject is engaging,
has engaged, or is likely to engage in illegal activity of
a similar type; or (b) The opportunity for illegal activity
has been structured so that there is reason for believing
that persons drawn to the opportunity, or brought to it,
are predisposed to engage in the contemplated illegal
activity.” Jacobson v. United States, 503 U.S. at 549 n. 2,
quoting from Attorney General’s Guidelines on FBI
Undercover Operations (Dec. 31, 1980), reprinted in S.Rep.
No. 97-682, at 551 (1982). In accordance with the
guidelines, the FBI task force in the instant case had
accumulated information from a variety of sources that the
defendant was distributing cocaine as a member of the
Longriders Club prior to the incident here.
In connection with the task force’s investigatory efforts
in this case, the defendant called FBI Special Agent Cliff
Hedges, who testified on cross-examination that the task
force had targeted the defendant as the result of an
accumulation of reports, particularly from several members
of another motorcycle club, which identified the defendant
as the Longriders Club’s chief cocaine trafficker. The
judge allowed Hedges’s testimony (without details as to his
sources), on the approved reasoning that such background
extrajudicial information explaining the state of police
knowledge and how the defendant came to the authorities’
attention, if carefully circumscribed, may be admitted so
long as it is not used for the truth of the statements that
served as the basis of the police knowledge. The judge
correctly cited Commonwealth v. Rosario, 430 Mass. 505,
508, 509 (1999), in her ruling. Her limiting instruction to
the jury (which the defendant’s counsel explicitly
requested and thanked the judge for) — specifying
that the “information [reported by Hedges] is not given to
you so you can consider it for its truth . . . [but] to
explain why the agents began their investigation. It does
not go to the predisposition or the state of mind of the
defendant” — may be presumed to have been followed by
the jury, see Commonwealth v. Hanlon, 44 Mass.App. Ct. 810,
822 (1998); Commonwealth v. Correia, 65 Mass.App.Ct. 27, 37
n. 8 (2005), and to have rendered harmless the supposed
prejudice that the defendant conclusorily asserts (contrary
to Mass.R.A.P. 16[a][4], as amended, 367 Mass. 921 [1975] )
was created by the testimony. See Commonwealth v. Hanlon,
supra. The defendant has presented no coherent argument
demonstrating either “palpable error” in (see Commonwealth
v. Robertson, 408 Mass. 747, 750 [1990], quoting from
Commonwealth v. Young, 382 Mass. 448, 463 [1981] ) or the
lack of an honest conscientious, intelligent basis for (see
Commonwealth v. Jaime, 433 Mass. 575, 579 [2001] ) the
judge’s exercise of discretion in making the challenged
ruling. See Commonwealth v. King, 387 Mass. 464, 472
(1982). Finally, the defendant’s appellate objection to
Hedges’s testimony based on Crawford v. Washington, 541
U.S. 36 (2004), similarly lacks substance and violates
Mass.R.A.P. 16(a)(4), being grounded in an unsupported and
entirely speculative contention that the reports about the
defendant to Hedges and the task force investigators had to
have been “testimonial” as the product of supposed police
interrogation.
[fn16] Jacobson v. United States, 503 U.S. at 550, involved
a defendant as to whom the government initially had no
information regarding illegal activities, who was the
target of twenty-six months of repeated mailings and
communications from government agents to induce him to
purchase illegal materials (child pornography) through the
mails, efforts which the Court describes as having “exerted
substantial pressure on” the defendant to make the illegal
purchases (id. at 552), and which amounted to the
government’s “implant[ing] in the mind of an innocent person
the disposition to commit the alleged offense” so that it
could prosecute “an otherwise law-abiding citizen who, if
left to his own devices, likely would have never run afoul
of the law” (emphasis in original). Id. at 553-554, quoting
from Sorrells v. United States, 287 U.S. at 442. The lesson
of Jacobson is that the government can use undercover
investigations to catch criminals but not to create them. No
decision, Federal or State, since Jacobson has adopted the
defendant’s interpretation of the prosecution’s burden in
an entrapment case. Compare, e.g., United States v.
Gifford, 17 F.3d at 469; United States v. Aibejeris, 28
F.3d 97, 99 (11th Cir.1994); United States v. Byrd, 31 F.3d
1329, 1336 (5th Cir.1994), cert. denied, 514 U.S. 1052
(1995); United States v. Garcia, 182 F.3d 1165, 1169 (10th
Cir.1999), cert. denied, 528 U.S. 987 (1999); Commonwealth
v. Monteagudo, 427 Mass. at 488. As these decisions
illustrate, what is critical is not the date when a
government agent first became involved with a suspect
generally but when, through the agent, the government began
specifically to “beguil[e] him into committing crime,”
Jacobson v. United States, 503 U.S. at 553, quoting from
Sherman v. United States, 356 U.S. at 376, which did not
occur here until Nartowicz’s June 4, 1999, offer to buy
cocaine, an “opportunity . . . [the defendant] promptly
availed himself of.” Id. at 550. The jury were not obliged
to credit the self-serving testimony of the defendant and
his witnesses that Donais, acting as a government agent,
persistently cajoled him to use and sell cocaine prior to
June, 1999. Indeed, the record is devoid of any evidence
that Donais had ever tried to induce the defendant to sell
cocaine to anyone prior to June 4, 1999.
[fn17] As earlier noted, predisposition may be found solely
based on “the conduct of the defendant as related to the
indictments at issue . . . if the evidence is of sufficient
significance,” Commonwealth v. Miller, 361 Mass. at 652,
which a jury could readily find had been presented by the
prosecution in this case.
[fn18] The word “discretion” as used in the model charge may
be an inadvertent misprint, since the alternative Superior
Court instruction on entrapment, § 3.5, uses the
more apt phrase, “someone acting under the direction . . .
of a government agent.” Superior Court Criminal Practice
Jury Instructions § 3.4 (1999). See Commonwealth v.
Tracey, 416 Mass. at 537 n. 10 (“we have said that the
defense of entrapment is raised by evidence of inducement
by a government agent or one acting at his direction “)
(emphasis in original).
[fn19] In his written proposed instructions, the defendant
had cited Commonwealth v. Rancourt, 399 Mass. 269, 274
(1987), in purported support of this charge. That case is
of no help to him, however, since it had nothing to do with
instructions or entrapment, but rather involved the issue
whether a person could be characterized as a government
agent simply because he was attempting to curry favor with
law enforcement officials. The court held that he cannot be
so characterized. Id. at 274-275.
[fn20] See Commonwealth v. Barbosa, 399 Mass. 841, 844
(1987); Commonwealth v. Gordon, 407 Mass. 340, 350 (1990);
Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975);
Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979).
[fn21] The prosecutor had argued against the girlfriend’s
testimony on the additional basis that, even if relevant,
any minimal probative value was “tremendously outweighed .
. . by the prejudice” to the Commonwealth’s case from
putting the subjects of a gun and a murder involving a
government agent before the jury. The judge may have been
alluding to this ground when she specifically warned defense
counsel to admonish the girlfriend not to make any
“reference to a gun in a murder in Hartford” in her
testimony, and it would have been within her sound
discretion to exclude the evidence on that ground as well.
See Commonwealth v. Booker, 386 Mass. 466, 469-470 (1982).
[fn22] Additionally, as noted in note 21, supra, the
“tremendous” prejudicial impact of such evidence was raised
by the prosecutor, and if the defense had sought to have
the statement admitted as a hearsay exception, i.e., for
the truth of the matter asserted, such prejudice would have
justified its exclusion in the judge’s discretion under the
Ruszcyk rationale. See Ruszcyk v. Secretary of Pub. Safety,
401 Mass. at 422-424. Cf. Commonwealth v. Martinez, 431
Mass. 168, 173-175 (2000) (testimony by defendant’s
girlfriend, that defendant’s niece had threatened to kill
her if she testified against him, was improperly admitted
as its probative value was negligible and risk of prejudice
was “significant”). Further, the factors mentioned by the
court in Ruszcyk as relevant to the inquiry — “the
credibility of the witness; the proponent’s need for the
evidence . . .; and the reliability of the evidence
offered,” Ruszcyk v. Secretary of Pub. Safety, supra
— all would weigh against the defendant here. The
witness, who was an admitted long-time cocaine abuser, also
admitted to being the defendant’s girlfriend, and to having
felt betrayed by Donais, who had concealed his status as a
government informant from her. The evidence of Donais’s
motive for being a government informant was extensively
spread upon the trial record through various witnesses. And
the proffered statement was far from reliable, defense
counsel himself having conceded during voir dire that its
truth was irrelevant and the prosecutor having vigorously
disputed the accuracy of the statement.
[fn23] Donais had moved to Florida sometime in 2001 and
ceased to have a cooperating role with the government soon
thereafter.
[fn24] The prosecutor had also objected to the autopsy
report as hearsay. The defendant here argues that it should
have been deemed authenticated as an official record, but
he provides no decisional authority supporting that
position, nor was any relevant authority on the point
provided to the judge at the voir dire on the document. In
addition, the autopsy report does not address whether Donais
ingested the cocaine by mistake, ruse, while incapacitated,
or by force. The defense presented no evidence regarding
the 2003 death on the issue whether Donais possessed this
cocaine knowingly or intentionally, further diminishing the
probative value of the evidence.
[fn25] “In order to find an abuse of discretion, `it is
necessary to decide that no conscientious judge, acting
intelligently, could honestly have taken the view expressed
by [her].'” Commonwealth v. Anderson, 445 Mass. 195, 209
(2005), quoting from Commonwealth v. Jaime, 433 Mass. 575,
579 (2001). Alternatively, the appellate court would have to
be persuaded that the trial judge’s action reflected
“arbitrary determination, capricious disposition, whimsical
thinking, or idiosyncratic choice.” Greenleaf v.
Massachusetts Bay Transp. Authy., 22 Mass.App.Ct. 426, 429
(1986).
[fn26] The “palpable error” analysis is most commonly
applied to a trial judge’s discretionary balancing of the
probative value of proffered evidence and its risk of
unfair prejudice or jury confusion. See Commonwealth v.
Rosario, 444 Mass. 550, 557 (2005); Commonwealth v. Bonds,
445 Mass. at 831. No case appears to have drawn any clear
distinction, if one exists, between the contents of the
abuse of discretion standard vis-?”-vis the palpable error
standard.
[fn27] The defendant never demonstrates how this supposed
evidence of Donais’s death from “cocaine toxicity” so long
after the events at issue could have had a significant
impact on the jury verdict. This is unsurprising, in light
of the substantial trial evidence of Donais’s cocaine use
during the relevant time period and the fact that the
defendant himself testified that two years constituted
sufficient time within which to develop a cocaine habit, go
through rehabilitation, become sober and productive, then
resuccumb to cocaine addiction.