Com. v. LaBonte

• Decision Date: 22 December 1987
• Docket Number: No. 87-618,87-618
• Citation: 516 N.E.2d 1193,25 Mass.App.Ct. 190
• Parties: COMMONWEALTH v. James R. LaBONTE.
• Court: Appeals Court of Massachusetts

Page 1193

516 N.E.2d 1193

25 Mass.App.Ct. 190

COMMONWEALTH v. James R. LaBONTE.

No. 87-618.

Appeals Court of Massachusetts,

Middlesex.

Argued Nov. 9, 1987.

Decided Dec. 22, 1987.

Matthew A. Kamholtz, Boston, for defendant.

Cheryl Jacques, Legal Asst. to the Dist. Atty. (Fredric L. Ellis, Asst. Dist. Atty., with her), for Com.

Before GREANEY, C.J., and KAPLAN and GRANT, JJ.

KAPLAN, Justice.

There is no dispute that the defendant, LaBonte, committed the acts constituting the crime described at G.L. c. 94C, § 32E(b )(2), trafficking in cocaine by distributing or bringing into the Commonwealth a net weight of more than 100 but less than 200 grams of the substance. He sought to be excused because, as he claimed, the Commonwealth failed to present a case from which a jury could justifiably infer beyond a reasonable doubt that its agents did not "entrap" him into the performance of the criminal acts. The point was raised by the defendant's motion for a required finding of not guilty at the close of the Commonwealth's case, which the judge denied. The defendant subjoins the argument that the judge's instructions about entrapment were defective. He contends, further, that the judge erred in admitting hearsay testimony about an informant's activities and in allowing the informant's claim of a privilege against self-incrimination. We take up these points in turn and shall end by affirming the conviction.

Question of entrapment. Reviewing the ruling on the motion for a required finding, we take the evidence with the usual intendment in favor of the Commonwealth, see Commonwealth v. Campbell, 394 Mass. 77, 82, 474 N.E.2d 1062 (1985), and accordingly the story emerges thus. On March 28, 1986, after arrangement between Douglas Mann and the defendant, Mann and Stephen Matthews met the defendant in front of the Marriott Hotel in Newton. The defendant was unaware that Matthews was a State trooper doing undercover work for a narcotics unit and that Mann was acting as a "confidential informant" for the police. ¹ Mann introduced Matthews to the defendant as "Steve O'Brien." A businesslike conversation followed between Matthews and the defendant. Matthews said he was interested in buying five ounces of high quality cocaine weekly, and the defendant replied that he could supply those amounts; the cocaine would be of high quality, but he could not promise "mother of pearl." There was some haggling over price, but it was finally fixed at $1,800 an ounce. Delivery was expected to take place perhaps within a week or ten days. Matthews gave the defendant a number for activating a "beeper" to record a telephone number at which the defendant could be called for the purpose of arranging a "meet." Concluding their conversation, Matthews and the defendant entered the hotel, had a drink there, and parted.

On April 1, the beeper showed a telephone number, and, after trying a few times and getting a busy signal, Matthews completed the call with a person who said Jim had just left. Matthews secured the defendant's home telephone number from Mann and reached the defendant by phone the following morning, April 2. Time and place of delivery of the cocaine were set at 11:00 A.M., April 4, the Marriott Hotel in Burlington.

Matthews, carrying $9,000, arrived on time on April 4, parked his (unmarked) car in front of the hotel, and entered. The defendant was at a telephone in the lobby. The men met and shook hands and at Matthews' suggestion went out and entered Matthews' car. Matthews drove the car to the back of the hotel and stopped. The defendant drew out a brown bag enclosing a plastic bag which contained a white substance in "rock" form with some fall from the rock. He said it was real good; he had used some from the same "till" the previous night at a Prince concert; it might have a funny odor because of the "cut" (the dilutant that had been applied). Matthews examined the stuff and smelled it. At that point he announced himself and placed the defendant under arrest. The content of the bag later assayed officially as 118.3 grams (in excess of four ounces) of 59% cocaine (with inositol as a dilutant). ² Its street value (assuming a further cut) would be about $30,000.

The defendant was frisked and then taken to a Burlington police station. After booking and due Miranda warnings, he told Matthews and other officers quite freely that John Smith (pseudonym) of Nashua, New Hampshire, a very big dealer, was his source for the cocaine; Smith had "fronted" the transaction, i.e., given him the cocaine on credit, and would expect to receive $7,000 from him in payment that afternoon. He handed the officers Smith's business card showing that Smith was associated with a local company. In response to questions, the defendant said he would be willing (upon the promise by the police of a recommendation of leniency on the present cocaine charge) to cooperate with the police in incriminating Smith. That possibility faded when the police were unwilling to set a trap for Smith by certain expedients that were suggested, such as giving the defendant $7,000 in cash to hand to Smith.

The foregoing is the substance of Matthews' testimony on direct examination, to which should be added that Matthews characterized the defendant's behavior as being clear of perturbation or anxiety up to the time of arrest. (Testimony by two other officers is noted in the margin. ³ )

In cross-examining Matthews, defendant's counsel attempted to get him to chime in with the version of the facts that the defendant put forth in his later testimony on his own behalf. Matthews did not yield to the attempt. Defense counsel did elicit from Matthews that in early February, 1986, he had arrested Mann, who had a sizable criminal record, on a charge of cocaine trafficking. On February 7, the two made a deal: if Mann would cooperate with the police and help to secure the arrest of a substantial drug dealer (one who dealt in multiple ounces), the police would urge the district attorney to ask for leniency on Mann's cocaine trafficking charge. Mann mentioned the defendant LaBonte as a substantial dealer. Matthews instructed Mann to introduce him to the defendant. Mann indicated that he would approach the defendant on the basis of an indebtedness of $900 owed by Mann to the defendant; Mann had given the defendant a check for that amount, but the check had bounced. Presumably Mann would suggest to the defendant that his profits from sales of cocaine to a third party would cover the $900 outstanding. Then followed Mann's introduction of the undercover trooper Matthews to the defendant. The charge against Mann was still pending; the district attorney was being urged to ask its dismissal. (The cross-examination went into other matters which need not be recounted.)

Upon redirect examination, Matthews brought out the "situation" regarding the $900 debt. According to Mann, this arose from an earlier sale by the defendant to Mann of an ounce of cocaine (priced between $1,800 and $2,000). Matthews also testified that the present was not the only situation in which Mann had assisted the police.

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. See Commonwealth v. Miller, 361 Mass. 644, 651-652, 282 N.E.2d 394 (1972). We need not inquire whether there was enough in the present case even to produce the issue, for the Commonwealth carried any burden of proof cast upon it.

First, on the element of undue enticement, we ask whether the Commonwealth, acting with the aid of an informant, was setting a trap for an "unwary innocent" or for an "unwary criminal." See Commonwealth v. Harvard, 356 Mass. 452, 459, 253 N.E.2d 346 (1969). Otherwise stated, was 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? See Commonwealth v. Miller, 361 Mass. at 651, 282 N.E.2d 394; Commonwealth v. Shuman, 391 Mass. 345, 351, 462 N.E.2d 80 (1984). The present case was shown to conform to the latter pattern. Mann offered the defendant an opportunity by indicating a chance of profit and plausibly pointing to a buyer. The defendant was quite prepared to seize the opportunity and knew how to do it. He was deep enough in the trade to be able to procure the drug within a week of making the contract; familiar with the argot from "cut" to "fronting" to "mother of pearl"; and so knowledgeable about current prices that he could negotiate with conviction. The facts are no less convincing for the prosecution than those in other cases where predisposition was proved, e.g., Commonwealth v. Harvard, 356 Mass. at 454-455, 460, 253 N.E.2d 346; Commonwealth v. Miller, 361 Mass. at 647-649, 652-653, 282 N.E.2d 394; Commonwealth v. Shuman, 391 Mass. at 346-349, 352-353, 462 N.E.2d 80; United States v. Valencia, 645 F.2d 1158, 1167-1168 (2d Cir.1980); and they are in sharp contrast to cases where the prosecution failed in such proof, e.g., Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958).

Disengaged from the first issue is a possible second, did the Commonwealth establish that, in its effort to catch the defendant, it did not use methods so outrageous or wicked as to deny him due process? See Commonwealth v. Shuman, 391 Mass. at 353, 462 N.E.2d 80. The answer surely is that the Commonwealth sustained this burden also. Contrast the facts in United States v. Twigg, 588 F.2d 373 (3d Cir.1978). ⁴

In his brief the defendant overlooks much of the evidence presented in the case in chief and seems to offer the defendant's later testimony on his own behalf as necessarily true. That approach will...