Com. v. Miller

• Decision Date: 24 April 1972
• Citation: 361 Mass. 644,282 N.E.2d 394
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. Ruth M. MILLER.

Page 394

282 N.E.2d 394

361 Mass. 644

COMMONWEALTH v. Ruth M. MILLER.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Jan. 3, 1972.

Decided April 24, 1972.

Edward F. Harrington, New Bedford, (Antonio R. Luongo, Jr., Fall River, with him), for defendant.

Guy Volterra, Asst. Dist. Atty. (Philip A. Rollins, Dist. Atty., with him), for the Commonwealth.

Before CUTTER, REARDON, QUIRICO, BRAUCHER and HENNESSEY, JJ.

HENNESSEY, Justice.

At a trial subject to G.L. c. 278, §§ 33A--33G, the defendant, a licensed physician in Massachusetts, was convicted on thirteen indictments charging her with violations of various narcotic drug statutes and regulations. ¹ She was sentenced, under an unusual disposition, to consecutive one year terms in the house of correction on each of six indictments (36501, 36502, 36503, 36505, 36506, 36511). The other seven indictments were placed on file. The defendant assigns as error the refusal of the judge to direct verdicts of not guilty on all indictments and further maintains that the admission of certain evidence was error.

The jury were warranted in finding the following facts: Roland Garrison, an undercover agent, was assigned to conduct an investigation into illegal narcotic drug traffic in the Fall River and Somerset areas in the late fall and early winter of 1970--1971. During the course of his investigation he made numerous illegal purchases of narcotic drugs. During this same period of time, he had a number of conversations with certain individuals, known to him as drug users and pushers, during which conversations the defendant's name was mentioned. As a result of this information, Garrison, posing as a patient, went to the defendant's medical office in Somerset. His admitted purpose in seeking out the defendant was to obtain evidence to be used against her in prosecution for violations of the narcotic drug laws.

Garrison's first visit to the defendant's office was on Tuesday, December 1, 1970. He was attired in an olive drab jacket and blue jeans and had long hair and a beard. He gave her a false name and address and represented to her that he was then unemployed. He told her that he had taken a drug known as mescaline on the previous Saturday and that he was still suffering from the drug's aftereffects. He told her that he was nervous and had trouble sleeping. The two then discussed the general effects of mescaline and other drugs. The defendant told Garrison that she had opium and hashish in her home. She gave Garrison a glass vial containing stelazine and told him that the stelazine was for his nerves. As for his sleeping, she asked Garrison if he preferred nembutal or seconal to which he replied that he preferred the latter because he 'had done them before.' At this, the defendant gave Garrison a prescription for seconal.

During their conversations, the defendant complained to Garrison that she was being harassed by a neighbor and inquired if he could do anything about it. Garrison told her that he 'would see that . . . (he) could do.' Prior to leaving the office, Garrison told the defendant that because of the late hour it was unlikely that any drug stores would be open and asked her if she could give him anything until morning. She gave him eighteen red capsules which were wrapped in unlabeled 'Saran Wrap.' The capsules were later identified as containing a derivative of barbituric acid. The defendant then stated that she preferred to have Garrison fill the prescription in Brockton rather than in Fall River because they didn't 'want to ruin a good thing.' The defendant charged Garrison $1 for the prescription since he was 'going to do something for . . . (her).'

Garrison returned to the defendant's office on December 8, 1970, and told her that he had given to his friends the pills that he had received on his last visit, that he had no pills left and that he did not want to return to the same drug store within such a short period of time. Upon request from Garrison, the defendant gave him another prescription. She also asked him if he wanted some 'ups' and, upon receiving an affirmative answer, gave him twenty-nine yellow tablets and twenty-nine black and clear capsules. The drugs, later identified as dexadrine and other amphetamine derivatives, were wrapped in unlabeled 'Saran Wrap.'

A third visit took place at the defendant's office on December 15, 1970. During this visit the defendant told Garrison that she had recently come into possession of some cocaine. Upon request by Garrison, the defendant gave him a prescription for numorphan. She told him that the presence of severe migraine headaches was a good reason for prescribing the drug and told him to have the prescription filled out of town. There was evidence that numorphan is not prescribed for headaches. During this visit the defendant also gave Garrison another prescription for seconal.

Garrison returned to the defendant's office on December 23, 1970. On this occasion Garrison asked the defendant for another seconal prescription which the defendant gave him. They also discussed the question of whether it was possible to 'shoot up' barbiturates. The defendant asked Garrison if he took heroin by injecting it and, upon receiving an affirmative reply, supplied him with two syringes and needles. On December 29, 1970, Garrison again visited the defendant's office and was given another prescription for seconal. The defendant also told Garrison to come by the following week because she would have 'something nice' for him.

On January 5, 1971, Garrison went to the defendant's office where the defendant told Garrison that she had a couple of bags of cocaine for him. She told him that the bags were at her home and instructed him to wait until the office closed. Later that evening, the two discussed the various methods of using cocaine. The defendant told Garrison that the preferred LSD to marihuana or mescaline and that she had some marihuana at home. The defendant then suggested that the two go to her home to get the cocaine for him. Prior to leaving, the defendant gave Garrison twelve capsules, not labeled, and later identified as derivatives of barbituric acid, and said, 'These are a few from my private supply, because you are my friend.' Garrison was then instructed to drive his own car to the defendant's house. The defendant met him there, entered her house and returned with a quantity of cocaine which she gave to Garrison.

At no time during any of Garrison's visits with the defendant did she conduct a physical examination or take a medical history from him. A search of the defendant's house, on January 11, 1971, pursuant to a valid warrant, produced a quantity of marihuana and other drugs, including amphetamine derivatives, together with over 100 disposable syringes.

On the basis of the above facts, the defendant was indicted and found guilty on thirteen indictments as follows: (1) six indictments (36501, 36502, 36503, 36505, 36506, 36511) concerning delivery of harmful drugs without proper labeling and in excessive amounts and not in good faith in violation of G.L. c. 94, § 187A, and the rules and regulations of the Department of Public Health and the Board of Registration in Pharmacy; (2) one indictment (36504) for unlawful delivery of hypodermic needles and syringes in violation of G.L. c. 94, § 211; (3) three indictments (36507, 36508, 36509) for unlawful possession of narcotic drugs in violation of G.L. c. 94, §§ 198, 205, 187B; (4) two indictments (36510, 36513) for unlawfully dispensing and furnishing the narcotic drug cocaine in violation, respectively, of G.L. c. 94, § 200, and G.L. c. 94, § 94, § 217; and (5) one indictment (36512) for unlawful prescribing of a narcotic drug not in good faith and for other than pain or disease in violation of G.L. c. 94, § 200.

1. The defendant argues the defence of entrapment. The judge charged the jury on this issue, and, since no exceptions were taken to the charge, it is apparent that the instructions were deemed by the defendant to be satisfactory, and it is also apparent that the jury found no entrapment. However, the defendant now urges that the judge should have directed verdicts on all indictments because her defence of entrapment had been established as matter of law. There was no error.

The doctrine of entrapment has not been much discussed in Massachusetts law. See Commonwealth v. DeLacey, 271 Mass. 327, 331--332, 171 N.E. 455. In fact, only recently have we recognized it as an established part of our jurisprudence. Commonwealth v. Harvard, 356 Mass. 452, 459, 253 N.E.2d 346. In the Harvard case, we observed that while courts differ somewhat as to the details and rationale of the doctrine (see e.g. Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413; Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848), the general principle has been well stated by Professor Perkins at p. 921 of his Criminal Law: 'Entrapment, so-called, is a relatively simple and very desirable concept . . .. It is socially desirable for criminals to be apprehended and brought to justice and there is nothing whatever wrong or out of place in setting traps to catch those bent on crime; what the state cannot tolerate is having its officers, who are charged with the duty of enforcing the law, instigate crime by implanting criminal ideas in innocent minds and thereby bringing about offenses that otherwise would never have been perpetrated.' See Am.Law Inst., Model Penal Code, § 2.10, and Comment Tent.Draft No. 9, 1959).

It has been stated that entrapment occurs only when criminal conduct is 'the product of the creative activity' of government officials. Sorrells v. United States, 287 U.S. 435, 451, 53 S.Ct. 210, 216, 77 L.Ed. 413. However, no entrapment exists 'if the accused is ready and willing to commit the crime whenever the opportunity might be afforded.' United States v. Groessel, 440 F.2d 602, 605 (5th Cir.), cert. den. 403 U.S. 933...