Commonwealth v. Harding

Rapoza, J.

(concurring in the result). I agree that this matter should be remanded to the Superior Court although, unlike the majority, I would remand for both an evidentiary hearing and findings on the defendant’s motion for new trial. Although the motion judge presided over the defendant’s jury-waived trial, and later had the benefit of the defendant’s affidavit and two others in support of the motion, his summary denial of the defendant’s motion was inadequate. See Commonwealth v. Brookins, 416 Mass. 97, 104 (1993) (a stipulation of facts or an evidentiary hearing followed by findings is required before an appellate court can order a new trial based on ineffective assistance of counsel). See also Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979) (“Upon the motion the trial judge shall make such findings of fact as are necessary to resolve the defendant’s allegations of error of law”).

I believe that remand is appropriate considering the defendant’s claim that the actions of the State police toward him were so fundamentally unfair as to constitute a denial of due process, an issue apparently not raised by trial counsel. On the other hand, I do not conclude, as does the majority, that a remand is warranted for consideration of the defendant’s entrapment claim.

Addressing the entrapment issue first, even without affidavits from either trial counsel or the Commonwealth, it is clear that there is no merit to the defendant’s postconviction entrapment claim. The evidence at trial, supplemented by the affidavits filed by the defendant, fails to demonstrate either that trial counsel’s behavior fell measurably below that expected from an ordinary fallible lawyer or that the defendant was deprived of an otherwise available, substantial ground of defense. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

*384As to the first prong of Saferian, the lack of an entrapment defense actually produced several results beneficial to the defendant. First, it eliminated the prospect that the Commonwealth would introduce in evidence several shotguns, rifles, and seven pounds of ammunition seized at the defendant’s home to show his likely involvement in the drug trade. Second, by not pursuing an entrapment defense, trial counsel prevented the Commonwealth from introducing the defendant’s prior record of convictions for drug distribution and related offenses as evidence of his predisposition to commit the crimes charged.1 See Commonwealth v. Vargas, 417 Mass. 792, 796 (1994). I also note that, whatever else might be said of trial counsel’s behavior at trial, the defendant was acquitted of five of the seven charges against him.

Turning to the merits of the entrapment defense itself, the defendant was not deprived of an available, substantial ground of defense where, considering the facts contained in his supporting affidavits, he has failed to make even a threshold showing of entrapment. The defendant’s affidavit, in essence, sets out his assertion that he is a drug addict who was willing to cooperate with Ross and assist her in obtaining cocaine because he hoped to receive a share of the drugs in return. The trial judge, in sentencing the defendant, acknowledged the defendant’s predisposition to participate in such drag deals. The use of such a defendant by the police was, as he described it, “like shooting fish in a barrel.”

Not only was there compelling evidence of the defendant’s predisposition to assist in the procurement of drugs, but there *385was no evidence whatsoever that Ross ever promised him drugs or any share of the cocaine which she obtained in return for his assistance. Nor does the defendant claim that he was ever given drugs for helping Ross. Indeed, Ross repeatedly refused the defendant’s pleas for cocaine, rebuffing him on each occasion that he made such a request.2

The core of the defendant’s entrapment claim is not that the troopers sought to induce an otherwise unwilling defendant to cooperate with promises of crack cocaine. Rather, the defendant asserts that Ross’s mere awareness that he was a cocaine addict was sufficient to implicate the entrapment defense where the trooper sought his assistance in the procurement of that same drug. The defendant contends that where law enforcement officers are “experts in narcotics” they should be aware that “an addict . . . would do anything for a hit.” When dealing with an addict, he reasons, law enforcement officers should realize that such a person cannot say “no” to even the possibility of realizing his next “hit.” Essentially, he concludes that any request by a law enforcement officer to an addict to assist in the purchase of drugs is, by virtue of his addiction alone, an entrapment of that person. That is not the law of this Commonwealth, and I see no reason to start down the path suggested by the defendant.

The defendant’s second claim in support of his motion for new trial rests on a somewhat different footing than his entrapment argument. He asserts that the conduct of the police toward him was so outrageous and offensive to fair play as to constitute a violation of due process. See United States v. Russell, 411 *386U.S. 423, 431-432 (1973) (“[W]e may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction”).

The defendant contends that Trooper Ross acted with excessive zeal in pursuit of his assistance, not only persistently contacting him at his home, but also trailing him to a gas station and, eventually, following him to a bar where he and his girlfriend had gone to spend an evening together. Moreover, Ross knew that the defendant was addicted to both alcohol and drugs and that he was clearly under the influence of one substance or the other whenever the trooper solicited his help. The defendant paints a scenario in which Ross took unfair advantage of him when he was high (and presumably more compliant) to secure his assistance in obtaining drags. He asserts, in effect, that he was subject to government conduct that “involved . . . pressure [or] persistent exploitation of personal weakness, as might occur if an agent preys upon an addict’s need for narcotic.” Commonwealth v. Shuman, 391 Mass. 345, 355 (1984), quoting from United States v. Williams, 705 F.2d 603, 620 (2d Cir.), cert, denied, 464 U.S. 1007 (1983). Accordingly, he characterizes Ross’s actions as being so egregious as to bar his conviction. See Commonwealth v. Shuman, supra at 354.

The defendant’s due process claim is based not only on facts contained in his affidavit, but also on the trial testimony of Ross. Thus, relative to the October 30, 1996, incident, Ross testified that the defendant was “obviously high.” Nonetheless, she persisted and used him as an intermediary for the purchase of cocaine while he was in that condition. On the occasion of the November 5, 1996, incident, Ross returned to the defendant’s house and, determining that he had gone out with his girlfriend, tracked him down at a local gas station where they had stopped prior to going to dinner. Ross once again solicited his help in getting cocaine. He agreed to meet her later in the evening and proceeded to dinner where he drank to excess. Thereafter, according to the defendant, he went to a bar where he imbibed even more alcohol. He claims that Ross found him there in an *387intoxicated state. Nonetheless, she persisted and renewed her request that he help her obtain cocaine. When the defendant’s girlfriend went to the bathroom, Ross put her arm on his shoulder and continued her plea for his assistance. The defendant’s girlfriend returned to find Ross draped on her inebriated boyfriend. The girlfriend abruptly left the bar, and the defendant finally took Ross to get some cocaine.

I question whether, in the last analysis, the defendant will be able to show that Ross’s aggressive style was so “outrageous and offensive to fair play as to constitute a violation of due process.” See United States v. Russell, 411 U.S. at 431-432. Nonetheless, the defendant has woven together sufficient evidence from the trial testimony and posttrial affidavits to merit both an evidentiary hearing and written findings by the judge on this issue. See Commonwealth v. Brookins, 416 Mass, at 104.

The defendant’s prior drug involvement included (1) a conviction in 1993 for possession with intent to distribute cocaine on which he received a one year committed sentence; (2) a conviction in February, 1994, on three counts of drug distribution on which he received a one-year sentence along with probation and a suspended three- to five-year sentence; and (3) a conviction in May, 1994, of conspiracy to violate the Controlled Substances Act on which he received a six-month committed sentence. Indeed, during the entire period that the defendant was dealing with Trooper Ross, he was apparently on probation for drug distribution. As a result of the guilty verdicts in this case, he was found in violation of his probation and was ordered to serve a three- to five-year committed sentence. That sentence was ordered to be served concurrent with two three- to five-year sentences imposed concurrently on the two indictments on which he was found guilty.

Although the defendant does allege that he received some of the cocaine from the second trip to Walnut Street, his description of that event is inconsistent with an entrapment claim. On that occasion, he asserts, he was interested in obtaining some of the crack cocaine, but he did not rely (as he had previously done, unsuccessfully) on Ross’s willingness to share the drugs that she had obtained. On this occasion, he admits that, with respect to the rock that was purchased, “I even put a little money toward it.” Elsewhere he describes his actions as “chipp[ing] in a little money towards the rock.” After obtaining the crack cocaine at the Walnut Street address, he claims that he returned to the car, broke off a piece of the rock, and smoked it. We are left to assume that, in the defendant’s mind, he got what he paid for, not that he was being enticed into criminal activity by Ross with offers of cocaine. Indeed, the defendant admits that when he finished smoking his share and asked for more, Ross, as on previous occasions, said no.