Opinion
21-P-1086
12-12-2022
COMMONWEALTH v. Luis ROSA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was charged with two counts of possession of cocaine with intent to distribute and one count of trafficking in cocaine. After a jury trial, the pro se defendant was found guilty on all counts and was sentenced to a term of three to four years in State prison. We are not persuaded by any of the defendant's arguments on appeal, and accordingly we affirm his convictions.
The Commonwealth subsequently filed nolle prosequis as to the subsequent offense portions of the possession counts.
Discussion. 1. Instruction on defendant's drug addiction. At trial, the defendant took the stand and admitted to selling the drugs to Agent Lecuyer. The defendant presented phone records and testified that Agent Lecuyer contacted him a substantial number of times on various dates and argued "he was manipulating me into it." His primary defense was that although he sold Agent Lecuyer cocaine, Agent Lecuyer exploited his drug addiction and entrapped him.
The two elements of an entrapment defense are "(1) that the defendant was induced by a government agent or one acting at his direction and (2) that the defendant lacked predisposition to engage in the criminal conduct of which he is accused." Commonwealth v. Mussari, 97 Mass. App. Ct. 647, 652 (2020), quoting Commonwealth v. Madigan, 449 Mass. 702, 707 (2007). Once a defendant has adequately raised an entrapment defense through evidence of inducement by a government agent, the prosecution bears the burden of proving beyond a reasonable doubt that the defendant was already predisposed to commit the crime. Commonwealth v. Doyle, 67 Mass. App. Ct. 846, 851 (2006).
After being presented with the defendant's evidence and instructed on entrapment, the jury had only one central question to answer:
"[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).
The defendant testified he is an addict and stated during closing arguments that he "had been 16 years clean" before he was arrested and that his drug addiction "is why they knew they could play me and make me do what they wanted." The defendant argues that the judge should have sua sponte instructed the jury that they could consider evidence of the defendant's drug addiction when deliberating on the defendant's affirmative defense of entrapment. The defendant did not request this instruction at trial; accordingly, we review first to determine whether there was error and, if so, whether it created a substantial risk of a miscarriage of justice. Commonwealth v. Whitson, 97 Mass. App. Ct. 798, 807 (2020).
Passing the question whether the judge was required to sua sponte alter the model jury instruction on entrapment to include reference to the relationship addiction may play with respect to an entrapment defense, we conclude that the judge's failure to amend the model instruction in that way did not create a substantial risk of a miscarriage of justice. First, the defendant's addiction would not have negated the Commonwealth's evidence that the defendant was already predisposed to distribute and traffic in cocaine. The defendant told Agent Lecuyer that he had other customers who prefer his cocaine, that he had multiple suppliers, and that the supplier he was using for these drug transactions had better quality cocaine. The defendant also demonstrated experience when he instructed Agent Lecuyer to drive around the block to make sure no one was following him.
Second, the judge allowed the defendant to present to the jury ample evidence of his addiction, and the judge told the jury, "You alone determine what evidence to accept, how important any evidence is that you do accept, and what conclusions to draw from all the evidence." The jury were free to consider any evidence, including evidence of the defendant's addiction, and give it the weight they believed it deserved. There is nothing in the record to convince us that the jury did not weigh the defendant's addiction when considering his entrapment defense. Accordingly, the lack of instruction regarding what role addiction may play in terms of an entrapment defense did not create a substantial risk of a miscarriage of justice in the circumstances of this case.
We briefly mention that the defendant raised an argument for the first time during oral argument that the jury instruction on entrapment should be updated to better account for our modern scientific understanding of addiction. The judge instructed the jury that "the police cannot implant criminal ideas in an innocent mind" and that "the Commonwealth must prove beyond a reasonable doubt the predisposition of the defendant to commit the crime." Although the defendant raises some interesting points, this request is better addressed to the committees that author the Superior Court and District Court model jury instructions.
2. Judicial reprimand of the defendant in front of the jury. After being offered several different attorneys and declining their assistance, the defendant was found to have abandoned his right to counsel. At trial, he appeared pro se and had a court appointed attorney as "stand-by" counsel in the event he requested assistance.
During his opening statement, the defendant told the jury that he was being forced to appear pro se, and the judge instructed the defendant to confine his remarks to the evidence he expected to be entered at trial. During the cross-examination of Agent Lecuyer, the defendant again made statements that he was forced to appear pro se. The judge then, in front of the jury, warned the defendant that "if you make another statement like that, I'm going to give [the jury] some information on what has occurred in the past and what court rulings have been made." Because the defendant did not object at trial, reversal is required only if these comments created a substantial risk of a miscarriage of justice. Commonwealth v. LeFave, 430 Mass. 169, 174 n.6 (1999).
Although it might have been better practice for the judge to have spoken to the defendant at sidebar, the statement was necessary to limit the jury's exposure to being misled by the defendant as to how it was that he came to be representing himself at trial with the assistance of standby counsel, especially since the defendant had been previously warned during his opening statement. Further, the statement did not inherently damage the defendant's credibility. See Commonwealth v. Brown, 462 Mass. 620, 632 (2012), quoting Commonwealth v. Haley, 363 Mass. 513, 519 (1973) ("a first-rate trial judge will find and tread the narrow path that lies between meddlesomeness on the one hand and ineffectiveness and impotence on the other"). For those reasons, we hold that these judicial comments did not create a substantial risk of a miscarriage of justice.
3. Police conduct. The defendant next argues that the police conduct in this case was so outrageous as to violate his due process right to a fair trial. The substantial risk of a miscarriage of justice standard applies because this claim was not preserved. See Commonwealth v. Curran, 488 Mass. 792, 794 (2021). The defendant mainly argues that Agent Lecuyer's repeated contacts with the defendant amounted to exploiting the defendant's drug addiction. A defendant's due process rights may be violated in extreme cases where "the police conduct ... falls below standards, to which common feelings respond, for the proper use of governmental power." Commonwealth v. Monteagudo, 427 Mass. 484, 486 (1998), quoting United States v. Russell, 411 U.S. 423, 441 (1973) (Stewart, J., dissenting). On this record, there is no evidence that Agent Lecuyer intentionally exploited the defendant's drug addiction. Additionally, the evidence presented does not reliably establish how many separate contacts Agent Lecuyer made with the defendant. For those reasons, there was no substantial risk of a miscarriage of justice.
4. A "person" as defined by G. L. c. 94C, § 1 . The defendant also argues that he is not a "person" under G. L. c. 94C, § 1. A person is defined under G. L. c. 94C, § 1, as an "individual, corporation, government, or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity." The defendant is an individual, and the statute specifically permits the prosecution of an individual.
5. Section one of c. 1071 of the Acts of 1971. Lastly, the defendant argues that St. 1971, c. 1071, § 1, which created G. L. c. 94C, § 1, is constitutionally invalid because the version that appears at page 1019 of the 1971 Acts published by the Secretary of the Commonwealth says, "Be it enacted, etc.," rather than, "Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same," as required by Part II, c. 6, art. 8, of the Massachusetts Constitution. This argument is without merit. The actual act of November 11, 1971, which bears the Governor's signature, contains the required language.
Judgments affirmed.