Com. v. Doyle

• Decision Date: 21 December 2006
• Docket Number: No. 05-P-847.,05-P-847.
• Citation: 858 N.E.2d 1098,67 Mass. App. Ct. 846
• Parties: COMMONWEALTH v. James DOYLE.
• Court: Appeals Court of Massachusetts

Page 1098

858 N.E.2d 1098

67 Mass. App. Ct. 846

COMMONWEALTH v. James DOYLE.

No. 05-P-847.

Appeals Court of Massachusetts, Hampden.

Argued May 12, 2006.

Decided December 21, 2006.

Anthony J. Siciliano, Springfield, for the defendant.

Matthew J. Shea, Assistant Attorney General, for the Commonwealth.

Present: GREENBERG, LAURENCE, & GRAHAM, JJ.

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, 1999.¹ 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.² 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.³ 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.⁴

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.⁵ 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.⁶ 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."⁷ 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.⁸

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, where the Commonwealth allegedly 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, 53 S.Ct. 210, 77 L.Ed. 413 (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, 547 N.E.2d 916 (1989). "Mere evidence of solicitation is not enough to show inducement," ibid., quoting from Commonwealth v. Miller, 361 Mass. 644, 651-652, 282 N.E.2d 394 (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, 253 N.E.2d 346 (1969), citing Sorrells v. United States, supra at 441, 53 S.Ct. 210. See Commonwealth v. Colon, 33 Mass.App.Ct. 304, 306, 598 N.E.2d 1143 (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, 282 N.E.2d 394.⁹

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, 138 S.Ct. 883, 99 L.Ed.2d 54 (1988); Commonwealth v. Miller, 361 Mass. at 652, 282 N.E.2d 394; Commonwealth v. Thompson, 382 Mass. 379, 383-386, 416 N.E.2d 497 (1981); Commonwealth v. Shuman, 391 Mass. 345, 351, 462 N.E.2d 80 (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, 516 N.E.2d 1193 (1987). Predisposition may thus be found upon...