Commonwealth v. Harding

Greenberg, J. No dispute exists that the defendant, Sean Harding, committed the acts constituting two counts of distribution of cocaine of which he was convicted. G. L. c. 94C, § 32A(c). The defendant seeks to be excused because, he claims, the Commonwealth failed to prove a case from which a fact finder could justifiably infer, beyond a reasonable doubt, that police did not entrap him into committing the crimes. He also claims due process violations. See Commonwealth v. Shuman, 391 Mass. 345, 353-355 (1984). These issues were raised in the defendant’s posttrial motion for new trial in which he faults trial counsel for failure to assert these defenses. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The motion [379] judge, who also presided at the bench trial, denied relief without a hearing or mating any findings. On appeal, the defendant claims that it was error to deny his motion. To raise an entrapment defense in the course of trial, the defendant must introduce some evidence of inducement by a government agent or one acting at his direction. See Commonwealth v. Miller, 361 Mass. 644, 651-652 (1972); Commonwealth v. Thompson, 382 Mass. 379, 384-385 (1981). “By the established rule, an issue of entrapment is not raised unless it appears that a Commonwealth agent did something more than merely request or solicit the defendant to do the acts that comprised the given crime.” Commonwealth v. LaBonte, 25 Mass. App. Ct. 190, 194 (1987). Once an entrapment defense is raised, the burden is on the Commonwealth to prove beyond a reasonable doubt that the defendant was “predisposed” to commit the crime. See Commonwealth v. Miller, supra at 652. Examining the case in a light most favorable to the defendant, his thirteen-page affidavit, supplemented by portions of the trial record, reveals the following sequence of events. State police Trooper Daralyn Ross, clad in jeans and tee shirt, arrived at the defendant’s house on the evening of October 18, 1996. With her was Tracy Amado, recently released from a short stint at the Barnstable house of correction, where he had met the defendant. Amado, turned informer, thought he could arrange a “buy” for Trooper Ross. The defendant, an admitted cocaine addict, allowed them inside where they encountered three others. They were the defendant’s cousin, Brenda Harding; James Close, the biological father of Brenda Harding’s child; and a mutual friend, Michael Ketchem. Negotiation ensued, principally between Close and the supposed buyers. A small amount of cocaine was sold to Ross. The defendant was not part of the transaction. This initial foray did not figure in the indictments brought against him. A second visit by Ross to the defendant’s house occurred on October 23, 1996. Trooper John Milos accompanied Ross and waited outside for her return. Ross was able to get Ketchem to take her to a dealer to purchase some crack cocaine. A third visit on October 30 resulted in Ross and the defendant driving in Ross’s car to a house in Plymouth, where the defendant [380] procured some crack cocaine for Ross’s personal use. In Ms affidavit, the defendant claims to have no recollection of the events because he was “high on cocaine at the time.” On cross-examination during trial, Ross admitted that the defendant was “obviously high.” She described him as fidgety, talkative, in motion, and lookmg around a lot. On November 5, 1996, Ross and Milos spoke with the defendant’s cousin and then left in search of the defendant. In his affidavit, the defendant states that Ross intercepted him at a gas station, where he had stopped with Ms girlfriend before going on to Fenner’s, a restaurant. At Fenner’s, he ate dinner, drank heavily, and got very drunk. Next, he and his girlfriend stopped at “The Pub” for another libation. WMle the defendant’s girlfriend was in the restroom, Ross arrived at “The Pub.” According to the defendant’s affidavit, Ross “was practically begging me now for a rock of cocaine.” At tMs point, Ms girlfriend returned from the restroom to discover Ross with the defendant making plans to obtain cocaine. The girlfriend left in a huff, without so much as a goodbye. The defendant claims to have been very drunk, but admits that he contributed some of the purchase money toward obtaining the cocaine. He also alleges that Ross “knew that [he] was only helping her because [he] expected a Mt.” Seated as a passenger in the officer’s car, he directed her to a place in Bourne where the defendant thought he might find a dealer. They were informed that the “potential” seller had gone to Plymouth. EvenMally, they caught up with Mm there, and the defendant purchased some crack from the seller and borrowed a pipe used to consume it. The defendant broke off a piece of the crack and immediately began smoking inside the car, which remained parked in front of the house in Plymouth. Ross refused the defendant’s request for another Mt. At trial, Ross had a different version of the events of October 30 and November 5. However, she did not file any affidavit to oppose the defendant’s averments as explicated in Ms posttrial affidavit. The Commonwealth argues that the defendant has embellished Ms affidavit with statements that conflicted with Ms trial testimony in several key respects. In essence, the Commonwealth contends that the evidence at trial did not support a [381] defense of entrapment. His defense strategy, it seemed, was reasonable: the Commonwealth brought the charges in the wrong county —• improper venue. We may pretermit the question whether there was enough evidence for defense counsel to mount a defense of entrapment, see Commonwealth v. Harvard, 356 Mass. 452, 459 (1969), or whether the methods used by Ross to catch the defendant were “so outrageous or wicked as to deny him due process,” Commonwealth v. LaBonte, 25 Mass. App. Ct at 195, for without any findings, we cannot determine the reason for the judge’s decision. See Mass.R.Crim.R 30(b), 378 Mass. 900 (1979). A similar dilemma was created in Commonwealth v. Smith, 49 Mass. App. Ct. 127, 132-133 (2000), where the motion judge, who also was the trial judge, failed to make specific findings about trial counsel’s performance under the test set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). That omission did not prove fatal there because we could infer from the denial of the defendant’s motion for new trial that the judge credited trial counsel’s affidavit in which he explained why he did not call a witness whose “posttrial exoneration of the defendant was so unconvincing that such a strategy would not have affected the outcome of the case.” Commonwealth v. Smith, 49 Mass. App. Ct. at 132. See Commonwealth v. DeVincent, 421 Mass. 64, 68 (1995). Here, the defendant’s affidavit raises questions concerning the efficacy of his trial counsel’s strategy. Without a counter-affidavit of trial counsel, which the Commonwealth was in the best position to obtain, compare Commonwealth v. Smith, 19 Mass. App. Ct. 997, 998 (1985), there remain unresolved questions whether abandoning the entrapment defense made sense.1 [382] Notably absent is any indication that his decision to present a technical defense and give up the possibility of an entrapment defense, or to forgo challenging the police behavior on due process grounds, were reasonable calculations. On this record, we are not prepared to say that defense counsel’s failure to explore or present an entrapment defense violates the test set forth in Saferian. However, it is an issue of sufficient importance to warrant findings and perhaps an evidentiary hearing concerning counsel’s reasons for conducting the defense as he did.* 2 See Mass.R.Crim.P. 30(b). It is one thing to purchase cocaine from someone who is a known addict; such a person is often an unwary criminal. It is another thing to stand by while a defendant drinks to excess, particularly where that involves following the target to his social engagements. Otherwise stated, was the defendant initially lured by the Commonwealth into breaking the law or did the Commonwealth merely provide a “predisposed” person the opportunity to commit a crime? See Commonwealth v. Miller, 361 Mass, at 652.3 In particular, the judge’s inquiry and his findings should address [383] the reasons counsel may have had for conducting the defense as he did. See Commonwealth v. Aviles, 31 Mass. App. Ct. 244, 248-249 (1991). We remand to the Superior Court to make findings on the defendant’s rule 30(b) motion. So ordered. Footnotes [1] The Commonwealth, citing United States v. Coady, 809 F.2d 119, 121 (1st Cir. 1987), suggests that defense counsel’s decision to waive the entrapment defense kept out certain highly damaging evidence of the items seized from the defendant’s home at the time of his arrest. The Commonwealth claims that the defendant made a well-advised choice and that defense counsel should not be faulted. We concur that the defendant could not “have his cake and eat it too.” Ibid. To this, however, the defendant responds — correctly, we think — that the search of the defendant’s home on November 8, 1996, revealed weapons not shown to be unlawfully possessed and other objects consistent with personal use of narcotics, not distribution. The evidence sheds no light [382] on whether he was predisposed to sell cocaine on the two occasions which resulted in convictions. It is improbable that the weapons seized from the defendant’s home would be admissible for any purpose. The record is devoid of any indication that the defendant’s possession of the guns was unlawful, nor has the Commonwealth amplified that aspect of the record with contrary information. [2] We acknowledge the concurrence’s decision that an evidentiary hearing on the due process claim is required. However, in the circumstances of this case, we prefer to leave the question of whether to conduct an evidentiary hearing to the discretion of the motion judge. See Commonwealth v. DeVincent, 421 Mass. 64, 67 (1995). See also Commonwealth v. DeChristoforo, 360 Mass. 531, 542 (1971); Commonwealth v. Little, 384 Mass. 262, 268-269 (1981). [3] We respectfully disagree with the concurrence’s conclusion that the defendant was predisposed to commit the crimes charged, and, therefore, was not entrapped, as a matter of law. If predisposition merely required willingness to commit the crime, the defendant would have been predisposed. However, the concept of predisposition “has positional as well as dispositional force.” United States v. Hollingsworth, 27 F.3d 1196, 1200 (7th Cir. 1994). One Federal court has utilized a multi-factor test for determining predisposition. See United States v. Thickstun, 110 F.3d 1394, 1396 (9th Cir.), cert, denied, 522 U.S. 917 (1997). The factors are as follows: “(1) the defendant’s character and reputation; (2) whether the government initially suggested the criminal activity; (3) whether the defendant engaged in the activity for profit; (4) whether the defendant showed any reluctance; and (5) the nature of the government’s inducement.” Ibid.