Com. v. Mr. M.

• Decision Date: 28 February 1991
• Citation: 566 N.E.2d 1125,409 Mass. 538
• Parties: COMMONWEALTH v. MR. M. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1125

566 N.E.2d 1125

409 Mass. 538

COMMONWEALTH v. MR. M. ¹

Supreme Judicial Court of Massachusetts Middlesex.

Argued Nov. 5, 1990.

Decided Feb. 28, 1991.

James B. Krasnoo, Boston, for defendant.

Edward D. Rapacki, Asst. Dist. Atty. (Catherine E. Sullivan, Asst. Dist. Atty., with him), for the Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

WILKINS, Justice.

The defendant contends, as he did unsuccessfully in the Superior Court, that he was entitled to a sentencing recommendation from the Commonwealth that he serve no time in prison on the drug charges for which he was indicted. He seeks enforcement of promises allegedly made to him that the prosecutor would recommend "street time," if (as he did) the defendant obtained significant evidence against a certain drug dealer. Because the prosecution made no such sentencing recommendation and the sentence imposed on the defendant included time to be served in State prison, the defendant asks us to order that his sentence be vacated and that he be resentenced following a recommendation from the prosecution that he serve no time in prison. Execution of the defendant's sentence has been stayed pending his appeal.

In February, 1987, a Middlesex County grand jury indicted the defendant for trafficking in cocaine with a net weight of 200 grams or more (G.L. c. 94C, § 32E [b ] [1988 ed.] ), possession of cocaine with intent to distribute (G.L. c. 94C, § 32A [a ] [1988 ed.] ), and conspiracy to traffic in cocaine (G.L. c. 94C, § 40 [1988 ed.] ). Following his indictment, the defendant undertook to cooperate with authorities in Middlesex County to obtain evidence against substantial drug dealers. When he was unsuccessful in Middlesex County, by agreement with Middlesex County authorities, the defendant made similar efforts in Essex County where he lived. He dealt with State police Lieutenant James Jejuga, the supervisor of the Essex County drug task force. In October, 1987, Jejuga identified a suspected drug dealer whom he wanted to convict of a major drug offense. He told the defendant that, if the defendant "delivered" the suspect, Jejuga would give an "on the street" recommendation. The defendant was successful, and a Federal grand jury indicted the person whom Jejuga sought. Jejuga described the defendant's work as very helpful to the effort.

During the time when, at considerable personal risk, the defendant obtained evidence against the suspected drug dealer, the office of the district attorney in Middlesex County had a policy, not generally disclosed, that, no matter the level of cooperation, it would always recommend on serious drug charges that the defendant serve at least some time in prison. The assistant district attorney who handled the defendant's case did not learn of this policy until after the defendant had begun to seek evidence for Jejuga. There was evidence that Sergeant Waterman, head of the narcotics division of the Lowell police department, who had dealt previously with the prosecutor with respect to numerous cooperating persons, knew of the policy, encouraged the defendant's cooperation in Middlesex and Essex counties, but did not tell the defendant or his counsel of that policy. The prosecutor had told the defendant's counsel that he would be satisfied with the defendant's level of cooperation if Waterman were satisfied. It is clear, however, that the policy became known to the defendant and his counsel while the defendant was continuing his undercover work and before he had obtained the evidence that Jejuga said would justify his recommendation of "street time" only.

Because of the defendant's cooperation, the prosecutor offered to nolle prosequi that portion of the charges against the defendant that called for mandatory minimum prison terms and then to recommend a sentence of from three to five years in State prison, service of all but one year of which would be suspended, with no fine, provided that the defendant entered guilty pleas and joined in the sentencing recommendation. The defendant rejected the offer and moved to dismiss those portions of the indictments that charged crimes calling for the imposition of mandatory minimum sentences, contending that, because of Jejuga's promises and the defendant's resulting cooperation, the Commonwealth was in breach of its obligation to recommend a nonincarcerative sentence. Alternatively, the defendant moved that the court order the Commonwealth to recommend the promised "on the street" sentence.

The judge denied the motion to dismiss portions of the indictments or to order the Commonwealth to make a recommendation consistent with the promises the defendant asserted that he had received. The judge ruled that Jejuga had no apparent authority to bind the Middlesex County prosecutor (prosecutor). The judge also rejected the defendant's claim that, although he did not enter a guilty plea before he knew that the prosecutor would not recommend an "on the street" sentence, he nevertheless acted to his detriment in reasonable reliance on the alleged promises, by engaging in dangerous undercover work, so that in fairness the alleged promises should be specifically enforced.

The judge further ruled that the defendant had no reasonable grounds to interpret Jejuga's promises of an "on the street" recommendation, in exchange for cooperation, as a promise that the prosecutor would make such a recommendation to the sentencing judge. It is apparent that Jejuga promised that, if the defendant were successful in helping him, Jejuga would make a recommendation of an "on the street" sentence to the prosecutor, and that he did so. The judge's finding that Jejuga promised an "on the street" recommendation does not state to whom Jejuga said he would make the recommendation. Jejuga testified that he did not promise that the prosecutor would recommend a street sentence to the sentencing judge but rather that he promised to make such a recommendation to the prosecutor. On the other hand, Jejuga also testified that he told the defendant that he was convinced that an "on the street" recommendation from him would result in an "on the street" recommendation from the district attorney.

In order to preserve his appellate rights with respect to his motion to dismiss, the defendant waived his right to a jury trial and agreed with the prosecution on a stipulation of facts that was presented to the judge....