Commonwealth v. Podgurski
Commonwealth v. Podgurski
Opinion of the Court
The defendant appeals from convictions of trafficking in more than twenty-eight grams of oxycodone, in violation of G. L. c. 94C, § 32E(b); possession with intent to distribute oxycodone, G. L. c. 94C, § 32A(c); and, as lesser included offenses of charges of possession with intent to distribute, simple possession of hydrocodone and marijuana, G. L. c. 94C, § 34.
1. Background, a. The offenses. During the Commonwealth’s case, evidence was introduced indicating the following facts. In September, 2005, detectives of the Brockton police department began surveillance of the defendant’s residence on Plain Street. During cross-examination, Detective Robert Morrissey testified that he was wholly unfamiliar with the defendant’s residence or his voice until October 5, 2005, on the occasion of a meeting arranged by a police informant. At the meeting on October 5, Morrissey, working undercover, met the defendant for the first time, at the home of the defendant, where Morrissey and the informant proceeded to purchase several Percocet pills from the defendant. Morrissey obtained the defendant’s telephone number at that time.
On the next day, October 6, 2005, at around 11:20 a.m., Brockton detectives set up surveillance around the defendant’s residence. Morrissey, using the number he had been provided the day before, placed a telephone call to the defendant to initiate an undercover purchase of Percocet, using fifty dollars of department-issued currency that he marked. During the call, Morrissey asked the defendant if he could “pick up eight
After Morrissey left the house, he returned to the Brockton police station while surveillance officers, Detectives Stanton and Diliddo, continued to watch the defendant’s residence. Less than one hour after Morrissey completed the purchase from the defendant, the defendant left his house. Stanton conducted a proper automobile stop, at which the defendant was given Miranda warnings, pat frisked, and ultimately placed under arrest. Diliddo searched the defendant’s car and discovered a pill bottle containing seventeen pills, and a clear plastic bag with forty-eight pills on the front passenger seat.
Pursuant to a valid search warrant, officers searched the defendant’s home and uncovered a number of illegal substances in pill form hidden throughout the apartment.
At trial, and over continued objection, Morrissey opened each heat-sealed bag of oxycodone and weighed it on a triple-beam scale belonging to the Brockton police department. Prior to making his measurements, Morrissey explained that one would first bring the scale to a zero reading before weighing any substance on it: “You zero out the scale to make sure it’s balanced correctly,” by turning “an adjustment screw in the back ... to calibrate it to the' surface which the scale lays on.” After testifying that the scale “appears to be calibrated to me,”
The defendant agreed during his testimony that Morrissey and another individual came to his home on October 5, the day before his arrest and the execution of the search warrant. The defendant testified that the third individual was a male named George Dukakis from whom he had purchased Vicodin for about one year and who the defendant at times had seen carry guns. The defendant stated that on that day, while Morrissey remained in the living room, he and Dukakis had a conversation in the kitchen. As a result of this conversation, the defendant testified, he was frightened. When the men returned to the living room,
The defendant further testified that on the next day, October 6, a man whose name he did not know, but whom the defendant had seen before in the company of Dukakis, arrived at his house and gave him a bag of Oxycontin and a bag of Percocets. The defendant admitted that later that morning, when Morrissey arrived at the defendant’s residence, he gave Morrissey some of the Percocets he had received earlier that day, but the defendant maintained that he did so because he was afraid for his family. Later that day, when police stopped the defendant and recovered seventeen Oxycontin and forty-eight Percocets, the defendant admitted he was on his way to Norwood to meet with Dukakis, and intended to deliver the pills to Dukakis because the defendant was afraid for his children. The defendant maintained that he had no underlying intention of selling the pills.
b. Development of entrapment as defense at trial. The defendant first attempted to raise the issue of entrapment, and specifically the nature of the relationship between Morrissey and Dukakis, during his cross-examination of Morrissey. Morrissey identified the individual who accompanied him inside the defendant’s residence on October 5, 2005, only as an informant.
At the ensuing side bar conference, defense counsel explained that the elicitation of information pertaining to this relationship represented an attempt to establish, in connection with his defense, that “Dukakis was in fact the moving force behind this entire event.” Upon the judge’s relevance query, counsel suggested further that if Morrissey knew the informant, that
During the defense case, the defendant attempted to introduce the conversation between Dukakis and the defendant to show its coercive nature and the state of mind of the defendant as relevant to meeting the evidentiary threshold for an entrapment defense. During the defendant’s direct testimony, his counsel began to explore the events that took place at the meeting between the defendant and Dukakis and Morrissey on October 5. The defendant identified Dukakis as his year-long source of Vicodin pills. Then, describing the conversation between him and Dukakis that took place after they moved into the kitchen and without Morrissey present, the defendant was permitted to testify that Dukakis “said that he needed to take care of his pills. He said I gotta have you take them out there. This guy [Morrissey] is a customer of my brother’s . . . and ... I don’t want him to know I’ve got anything.” When asked what the defendant recalled as the next event to take place, the defendant answered that Dukakis said, “I need to have you store my stuff,” drawing an objection. The judge instructed the jury to disregard this answer in totality and for counsel to move on.
Outside the presence of the jury, the judge permitted defense
Further, to show the existence of coercive motivation and threats, defense counsel proffered that Dukakis is or was a member of a motorcycle gang in the city of Brockton, “the Outlaws,” and that Dukakis allegedly threatened the defendant that he would cease selling Vicodin to the defendant if the defendant did not engage in this drug-selling activity. Defense counsel averred that Dukakis supported this threat with the statement that Dukakis “kn[cw] exactly who your [the defendant’s] family is and where your [the defendant’s] family lives and I will take care of it.” According to counsel, the threats were intended to “get [the defendant] to go along with this scheme which was an effort [by Dukakis] to get himself out of trouble and set somebody up.” Counsel offered further that the proposed testimony from the defendant would reveal that Dukakis arranged for the defendant to receive the oxycodone pills, directing the defendant to bring to Dukakis the collections of pills that were found in the car by the police.
Finally, when asked by the court to explain why the government would be responsible for the actions of Dukakis, counsel
2. Discussion, a. Entrapment. The defendant argues that the judge erred in excluding pertinent testimony at trial and in failing to instruct the jury on the defense. With regard to the former, the defendant avers that the judge directly prevented the defendant from introducing evidence that an informant of Detective Morrissey coerced the defendant to possess oxycodone, thereby establishing a sufficient foundation for an entrapment instruction. In particular, the defendant cites the judge’s prohibition of any testimony pertaining to the informant’s relationship with Detective Morrissey, and of the contents of any conversation between the informant and the defendant to show a spoken threat as the coercive basis of his actions.
Entrapment by law enforcement involves “implanting criminal ideas in innocent minds and thereby bringing about offenses that otherwise would never have been perpetrated.” Commonwealth v. Shuman, 391 Mass. 345, 351 (1984), quoting Perkins, Criminal Law 1031 (2d ed. 1969). “There are two elements of the entrapment defense: (1) that the defendant was induced by a government agent or one acting at his direction and (2) that the defendant lacked predisposition to engage in the criminal conduct of which he is accused.” Commonwealth v. Madigan, 449 Mass. 702, 707 (2007), quoting from Commonwealth v. Penta, 32 Mass. App. Ct. 36, 47 (1992). The defendant only bears an “initial burden ‘of producing some evidence of inducement by the government.’ . . . The burden then shifts to the Commonwealth ‘to prove beyond a reasonable doubt that (1) there was no government inducement or (2) the defendant was predisposed to commit the crime.’ ” Madigan, supra, quoting from Penta, supra.
Before reaching the inducement inquiry, the defense of entrapment requires the defendant to introduce evidence that the inducer
As the “threshold for a defendant to raise the entrapment issue is low,” Madigan, supra, quoting from Commonwealth v. Tracey, 416 Mass. 528, 536 (1993), the defense “is appropriately raised ... by the introduction of some evidence of inducement by a government agent or one acting at his direction.” Miller, supra. The court will consider the sufficiency of all evidence, “even if the evidence is unsubstantial and even if the evidence comes solely from the defendant’s testimony,” Tracey, supra, “but little more than solicitation is required to raise the issue.” Miller, supra at 652.
“Whether evidence is relevant and whether its probative value is substantially outweighed by its prejudicial effect are matters entrusted to the trial judge’s broad discretion and are not disturbed absent palpable error.” Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010), quoting from Commonwealth v. Simpson, 434 Mass. 570, 578-579 (2001). See Mass. G. Evid. §§ 401-403 (2011). We hold that such error occurred when the judge excluded both cross-examination of Detective Morrissey and the portion of direct examination of the defendant discussing his conversation with Dukakis. Each area of evidence will be discussed in turn.
In Madigan, the defendant’s need for an opportunity to probe the police-informant relationship was discussed. The Supreme Judicial Court stated that the “[fjailure to disclose information about the relationship, if any, between [the informant] and law enforcement or information as to any promises or inducements made to [the informant] by the government would defeat the defendant’s ability to establish his defense of entrapment.” Madigan, 449 Mass, at 709.
Notwithstanding that Madigan related to a request for pretrial disclosure of an informant’s identity, the defendant’s attempt in the instant case to inquire into the relationship between Morrissey and Dukakis is similar to the situation in Madigan, where “[t]he defendant asserts that [the informant] was acting as an agent for, or at least at the direction of, the police. The assertion, if true, has a direct relationship to his entrapment defense because entrapment focuses on ‘evidence of inducement by a government agent or one acting at his direction’ ” (footnote omitted). Id. at 708-709, quoting from Tracey, 416 Mass, at 537 n.10. Information pertaining to the relationship between Morrissey and Dukakis and relating to the defendant, if it exists, is essential to establish the defendant’s claim that the government induced him to commit crimes. See Colon, 33 Mass. App. Ct. at 305 (necessary for entrapment defense to establish inducer is government agent). Contrast Rancourt, 399 Mass, at 273 (motion judge correctly concluded no agency relationship had been established between government and fellow inmate of defendant, who had been told by police “that if he obtained any other information and wanted to relay that information, he should telephone or write to the district attorney’s office”).
Likewise, during testimony of the defendant, the judge erred
In the instant case, the defendant sought to present evidence of alleged coercion to demonstrate inducement that amounted to more than solicitation. Such inducement is required to meet the “low threshold” to raise the entrapment defense. Where the exclusion of the fine of questions during the cross-examination of Detective Morrissey was error because it prevented the defendant from exploring the nature of the government-informant relationship, the exclusion of the defendant’s testimony blocked information as to the defendant’s state of mind, an issue material to the underlying inducement or coercion.
b. In-court weighing of drugs. Further, we conclude the judge erred in permitting Detective Morrissey, during his testimony, to weigh the drugs manually on a police department scale without laying a proper foundation for admitting Morrissey’s testimony regarding the weight of the drugs. As such, this error effectively relieved the Commonwealth of its burden of establishing the
Where a measuring device is at issue, the courts in Massachusetts have required the party proffering a measurement at trial to present sufficient evidence to satisfy a threshold showing that the device is accurate. See, e.g., Commonwealth v. Torres, 453 Mass. 722, 737 (2009) (officer testified that during same month as offenses he had “calibrated the MeasureMaster [roller tape] by using it to measure a known distance, and that the device was accurate”). See also Commonwealth v. Whynaught, 377 Mass. 14, 19 (1979) (“some foundation requirement pertaining to the accuracy of the particular radar instrument is appropriate in order to ensure that the persuasive force of scientific results is not improperly triggered”); Commonwealth v. Whitlock, 74 Mass. App. Ct. 320, 327 (2009) (“Testimony about the nature of the tool and the manner in which the witness used it either provides or fails to provide a foundation for admission of the resulting observation”).
Contrary to the cases set forth above, the instant record is devoid of any evidence that the Commonwealth demonstrated the accuracy of the scale or that the scale at issue was sufficiently calibrated, consistent with Massachusetts law. The Commonwealth identifies the following evidence as indicative of calibration: that the scale remained in the possession of the police department for fifteen years prior to trial; that Detective Morrissey “zeroed” the scale at trial
It is undisputed that the scale had never been the subject of testing by any outside agency of the city or Commonwealth, nor had the officer ever tested its accuracy by weighing an object of known weight. Such methods, if employed, might have shown the device was accurate. Indeed, measurement against a known quantity is consistent with the dictionary definition of “calibrate”: “[t]o check, adjust, or determine by comparison with a standard (the graduations of a quantitative measuring instrument).” American Heritage Dictionary of the English Language 264 (4th ed. 2006). Thus, where the record is silent on any comparison involving a test object of known measure, we conclude the Commonwealth did not set forth sufficient foundational evidence of accuracy, thereby rendering the weights measured by the scale inadmissible.
3. Conclusion. While the defense of entrapment may have been one that the jury would have rejected out of hand, it was improper for the judge, given the low threshold evidentiary standard, to limit the defendant from developing it adequately. On the indictments charging the defendant with trafficking in and distribution of oxycodone, the judgments are reversed, the verdicts are set aside, and further proceedings shall be held in conformity with this opinion. The remaining judgments are affirmed.
So ordered.
It is undisputed that oxycodone, a class B controlled substance, is an ingredient in the brand name drugs Percocet and Oxycontin, and that hydrocodone, a class C controlled substance, is an ingredient in the brand name drug Vicodin.
As this issue of proper weight evidence may reoccur on retrial, we address it briefly in part 2.b of this opinion.
We need reach neither the defendant’s argument that counsel should have petitioned the trial judge for instruction on duress nor his argument that the prosecutor’s closing argument was improper, as such issues are not likely to come up at retrial.
The defendant is not heard to complain that his proposed defense of entrapment (or any of his other claims of error) reached the hydrocodone or marijuana charges.
The defendant was not charged for events occurring on October 5, 2005. The indictments each specified the following day as the date of the crime.
Detective Morrissey stated he purchased eight Percocet pills from the defendant at a cost of six dollars per pill. Using the department-issued currency, Morrissey tendered fifty dollars for this transaction and received two dollars in change. Subsequent to the transaction, Morrissey casually inquired as to the defendant’s afternoon plans, whereupon the defendant replied that he was going “to Norwood to sell 50 perks [Percocets] and some [0]xycontin.”
The narcotics recovered in the defendant’s car and home were tested at the Department of Public Health forensic drug laboratory. One Piro, a senior chemist employed by the drug laboratory since 1991, testified that he served as confirmatory chemist for almost all drugs recovered in this case. The primary chemist (Gao) for all other drugs tested in this case had retired and did not testify at trial. Piro confirmed Gao’s findings by reviewing the documentation produced by Gao. Piro analyzed a total of sixty-five pills found by Detective Diliddo on the front seat of the defendant’s car and determined that they were oxycodone.
During the warrant execution, Morrissey saw two adults — the defendant’s daughter Katherine and her boyfriend — and a young child walking out of the young child’s bedroom. More than 100 oxycodone and almost 200 hydrocodone pills were found in various locations in the apartment, including in a green trash bag inside a diaper box in the child’s room that held a pill bottle
Working as the preliminary chemist, Piro analyzed one set of six white pills and another set of eight pills found in the apartment, and determined that they were both hydrocodone. Piro also tested the green leafy substance found by O’Connell in the trash bag in the defendant’s living room and determined that it was marijuana.
This included a box of sandwich bags and a small hand-held scale in the same green trash bag, and a scale and a plastic bag of empty pill bottles in a dresser drawer in the same bedroom.
The transcript does not specifically indicate that Detective Morrissey turned the adjustment screw. The parties’ briefs indicate that he did so. The fact is of no consequence to our analysis, however.
We note that mere use of the term “informant" by a government agent is insufficient evidence that the government agent and the alleged informant have the requisite relationship to raise an entrapment defense.
The examination then continued as follows:
Q.: “Now, what else did Mr. Dukakis say to you at that point?”
Prosecutor: “Objection.”
The court: “No more statements, sir. You can go on to what was done, if anything.”
Q.: “What’s the next thing that happened between you and Mr. Dukakis?”
*181 A.: “I refused his request and he told me —”
The court: “Sir, stop.”
Defense counsel: “May we approach, Judge.”
The court: “No, sir. This has gone much afield. Let’s move on. I gave you some liberty here, but let’s move on.”
Defense counsel: “I understand, but can I please —”
The court: “You can put it on the record during our break. During outbreak you can.”
Defense counsel: “Then I’d like to break now, Judge, because his entire testimony hinges on what I’m trying to elicit through him and that involves statements of Mr. Dukakis.”
Once the requisite relationship between the inducer and the government is established, this court will consider the individual conduct alleged. Types of conduct that have gone beyond a mere request and possessed indicia of inducement include “aggressive persuasion, coercive encouragement, lengthy negotiations, pleading or arguing with the defendant, repeated or persistent solicitation, persuasion, importuning, and playing on sympathy or other emotion.” Tracey, 416 Mass, at 536, and cases cited.
As articulated above, because we find the judge’s exclusion of the cross-examination testimony of Detective Morrissey and the relevant direct testimony of the defendant to be reversible error, we need not reach the issue of failure to instruct the jury on the defense of entrapment.
While we recognize that there is a range of complexity among measuring devices, our view of calibration is consistent with that of the Legislature and the executive branch with regard to measuring the accuracy of breathalyzer devices. See 501 Code Mass. Regs. §§ 2.11, 2.14 (2010), which, in accordance with G. L. c. 90, § 24K, presently sets forth calibration standards by which the accuracy of each device must be measured, in tests of the device against a known measure to determine its functionality. The courts have further recognized the importance of verification procedures in the context of ensuring the accuracy of breathalyzer tests. See, e.g., Commonwealth v. Barbeau, 411 Mass. 782 (1992); Commonwealth v. Cochran, 25 Mass. App. Ct. 260, 263 (1988); Commonwealth v. Smith, 35 Mass. App. Ct. 655, 660-661 (1993).
The term “zero” refers to the practice of “adjusting] (an instrument, etc.)
We recognize the Commonwealth’s need to prove weight in a manner alternative to a certificate of analysis, given the effect of Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and we do not intend to suggest that the Commonwealth’s method for proving the weight by a person other than a laboratory technician or analyst, and in a setting other than a laboratory, if done appropriately, is unacceptable.
Reference
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- Commonwealth v. Ronald Podgurski
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