Com. v. Hardy, 90-P-876

• Decision Date: 22 July 1991
• Docket Number: No. 90-P-876,90-P-876
• Citation: 31 Mass.App.Ct. 909,575 N.E.2d 355
• Parties: COMMONWEALTH v. Frederick L. HARDY.
• Court: Appeals Court of Massachusetts

Page 355

575 N.E.2d 355

31 Mass.App.Ct. 909

COMMONWEALTH v. Frederick L. HARDY.

No. 90-P-876.

Appeals Court of Massachusetts,

Worcester.

Argued June 13, 1991.

Decided July 22, 1991.

M. Page Kelley, Boston, for defendant.

Elizabeth M. Maunsell, Asst. Dist. Atty., for Com.

Before DREBEN, FINE and PORADA, JJ.

RESCRIPT.

We reverse the defendant's conviction of distributing cocaine because of the District Court judge's failure to instruct the six-person jury, to whom the case was tried, on the issue of entrapment. Defense counsel requested such an instruction during a charge conference, and he voiced a timely objection to the judge's failure to give it. We think the entrapment defense was adequately raised by evidence of a government agent's intentional, persistent, and repeated conduct which went beyond a mere solicitation or request that the defendant participate in a criminal act. See Commonwealth v. Miller, 361 Mass. 644, 651-652, 282 N.E.2d 394 (1972). Contrast Commonwealth v. Thompson, 382 Mass. 379, 385, 416 N.E.2d 497 (1981); Commonwealth v. Shuman, 391 Mass. 345, 351-353, 462 N.E.2d 80 (1984); Commonwealth v. LaBonte, 25 Mass.App.Ct. 190, 194, 516 N.E.2d 1193 (1987).

Norbert R. Sheckier worked, often undercover, for the "United States Army Criminal Investigation Command Drug Suppression Team" at Fort Devens. He testified that on March 13, 1989, he commenced an investigation of the defendant, the operator of a shuttle bus at Fort Devens, and that on two occasions, April 1, 1989, and April 6, 1989, the defendant arranged purchases of cocaine at an establishment known as Charlie's Bar. Only the April 6th incident was the subject of the criminal charge.

The defendant's testimony was as follows. Sheckier approached him on the shuttle bus on at least five occasions prior to April 1st, inquiring about buying drugs. The defendant was "stunned," and told Sheckier he neither sold nor used drugs. The defendant had arranged to meet Sheckier on April 1st at a party. Sheckier kept following the defendant around, asking where the drugs were. The defendant told Sheckier to leave him alone; he didn't know anyone who "[did] that stuff." Sheckier responded repeatedly, "Now I need some." Only after Sheckier kept asking him for drugs did the defendant agree to go with Sheckier to Charlie's Bar. Although the defendant continued to resist becoming involved in the sale, he finally did so "to get him off [his] back." The April 6th purchase was also precipitated by Sheckier's request for drugs. Although the defendant accompanied Sheckier to Charlie's Bar again on April 6th, he told Sheckier he could buy the drugs himself. Sheckier asked the defendant from whom he might purchase the drugs, and the defendant said he did not know. In the end, the defendant participated in Sheckier's drug purchase, but, according to his testimony, only to prevent Sheckier from being beaten up.

We do not consider whether the evidence offered by the defendant was credible. On its face,...