Commonwealth v. Madigan
Commonwealth v. Madigan
Opinion of the Court
This interlocutory matter is here on the Commonwealth’s petition for relief pursuant to G. L. c. 211, § 3, reported by a single justice of this court. The Commonwealth challenges an order of a judge in the Superior Court requiring it to disclose to the defendant information concerning the relationship, if any, between an individual, Jane Doe,
The Commonwealth’s opposition rests largely on its asserted privilege not to disclose the identity of a confidential informant. We conclude that, in the circumstances of this case, the Commonwealth’s privilege may not shield information that is material to the defense of entrapment, as to which the defendant has made an adequate pretrial showing. We conclude that the judge was correct and remand the case to the county court for entry of a judgment denying the petition for relief under G. L. c. 211, § 3.
1. Background. In December, 2004, a Suffolk County grand jury returned four indictments charging the defendant with trafficking in cocaine, in violation of G. L. c. 94C, § 32E (b), and one indictment charging conspiracy to violate the drug laws, G. L. c. 94C, § 40. According to the Commonwealth,
The Commonwealth asserts that it also expects to present
The defendant was arrested on the evening of October 4, 2004, after Trooper Wakeham picked him up in her automobile and completed a partial sale of two ounces of cocaine. According to the Commonwealth, on the same afternoon surveillance officers reported that they had seen the defendant engaging in conduct consistent with the sale of small quantities of drugs outside a Revere bar.
In January, 2006, the defendant filed notice of an entrapment defense, together with two discovery motions, one of which sought to discover “any and all government agents, unwitting intermediaries or not, and informants who provided assistance or information” that led to his arrest, as well as “all promises, considerations, rewards, benefits, or inducements made ... to induce or encourage the cooperation of any witness, agent, or informant or that individual’s families or friends.” According to the defendant, Doe, an acquaintance of his, had been “cultivating” him as a “potential seller” to the undercover trooper for some time. The judge entered a conditional order requiring the defendant to provide an affidavit concerning his prior dealings with Doe, and obligating the Commonwealth, in response, to provide the requested discovery regarding Doe.
Thereafter, the defendant filed his affidavit, in which he
The Commonwealth moved for reconsideration. The judge allowed the motion only to the extent that she would conduct an inspection in camera of the Commonwealth’s information in question.
2. Discussion. The government’s privilege not to disclose the identity of an informant has long been recognized in this
Competing with this privilege is the defendant’s entitlement to exculpatory or other information that is material to his defense. See Roviaro v. United States, supra at 60-61 (where “the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way” [emphasis added]). The cases that have required disclosure “have all done so on a standard of materiality or something roughly akin thereto.” Commonwealth v. Lugo, 406 Mass. 565, 571 (1990).
“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. Penta, 32 Mass. App. Ct. 36, 47 (1992). The defendant has the initial burden “of producing some evidence of inducement by the government.” Id. 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.” Id. See Commonwealth v. Monteagudo, 427 Mass. 484, 487 (1998) (defendant’s testimony, if believed, that trooper induced commission of crime raised issue of entrapment and Commonwealth then had burden to prove defendant’s predisposition to commit crime).
Our leading case on entrapment explains that the defense “is appropriately raised ... by the introduction of some evidence of inducement by a government agent or one acting at his direction.” Commonwealth v. Miller, 361 Mass. 644, 651-652 (1972). That case concerned whether a jury instruction on entrapment was warranted. See Commonwealth v. Tracey, 416 Mass. 528 (1993). Here the issue has arisen before the trial, but the showing of inducement the defendant is obliged to make is the same. See Commonwealth v. Shuman, 391 Mass. 345, 352 (1984) (describing entrapment evidence proffered by defendant by pretrial motion to dismiss). The question, therefore, is whether the defense of entrapment here has been “appropriately raised.” Commonwealth v. Miller, supra at 651. “The threshold for a defendant to raise the entrapment issue is low . . . .”
We conclude that the defendant has met the threshold of proffering “some” evidence of inducement by a government agent, even if “unsubstantial.” Commonwealth v. Miller, supra. In Miller, this court explained that “[m]ere evidence of solicitation is not enough to show inducement, but little more than solicitation is required to raise the issue.” Id. at 652. The types of conduct that possess the 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” (emphasis added). Commonwealth v. Tracey, supra, and cases cited. In his motion for discovery, the defendant claims that Doe “had been cultivating the defendant as a potential seller to undercover trooper for some time,” and in his supporting affidavit, he stated that she “was persistent and repetitive in her requests to sell . . . drugs to the undercover State Trooper even after the introduction.” It would have been preferable had the defendant’s affidavit provided more details of Doe’s importuning that he sell cocaine to the undercover trooper, such as the number of occasions, and dates, on which he interacted with Doe concerning Trooper Wakeham, and his response to her cajoling. But the defendant’s assertions that Doe “cultivated” him, and that she was not only “repetitive” but was “persistent” in her efforts to get the defendant to sell cocaine to Trooper Wakeham, is sufficient in light of the “low” threshold to establish a potentially viable entrapment defense.
We therefore turn to consider whether the defendant’s requested discovery is material to that defense. See Commonwealth v. Lugo, supra at 571. The defendant asserts that
Whatever the strength of the evidence at trial, it is for the jury, not an appellate court before trial, to decide whether to credit the Commonwealth’s evidence. See Commonwealth v. Miller, supra at 658-659 n.3 (“We agree with the great weight of authority that, for compelling reasons, including constitutional considerations, the entrapment issue should be heard and decided by the jury”). At this stage of the proceedings, our concern is only with whether the defendant has satisfied his burden of producing “some” evidence of inducement. Id. at 651. See Commonwealth v. O’Malley, 14 Mass. App. Ct. 314, 325 (1982) (“In the usual case, therefore, it is far more prudent for the judge to follow the traditional, and constitutionally sounder, course of waiting until all the evidence has been introduced at trial before ruling on its sufficiency to raise a proffered defense”).
The public policy rationale supporting the Commonwealth’s informant’s privilege is generally stated as protecting the
3. Conclusion. The case is remanded to the county court for entry of judgment denying the Commonwealth’s petition for relief under G. L. c. 211, § 3.
So ordered.
In an affidavit filed in support of his discovery motion, the defendant named the individual referred to as Jane Doe. On appeal both parties refer to her as Jane Doe, and have redacted those parts of the record identifying her.
We summarize here the evidence the Commonwealth “expects to present at trial,” which is drawn from police reports of the incidents in question.
Specifically, the judge ordered the defendant to provide “an affidavit with
The judge ordered the Commonwealth to provide information “within the possession of the prosecution or of State or local police with whom the prosecution works concerning the relationship, if any, between [Jane Doe] and [Trooper Wakeham], or between [Doe] and any other member of the State police or member of a local police department who has participated in investigating this or related cases against [the defendant].”
Rule 14 (a) (1) (A) (iii) of the Massachusetts Rules of Criminal Procedure, as appearing in 442 Mass. 1518 (2004), provides in relevant part: “The prosecution shall disclose to the defense, and permit the defense to discover, inspect and copy, each of the following items and information . . . Any facts of an exculpatory nature.”
Where disclosure of a confidential informant is at issue, “[t]he use of an in camera procedure has been recognized in the Commonwealth, by other courts, and by commentators.” Commonwealth v. Douzanis, 384 Mass. 434, 441-442 (1981).
The judge impounded the affidavit, pending this appeal.
Our cases have “maintained the distinction between a demand for disclosure at a pretrial hearing, where the issue is probable cause for arrest or a search, and a demand for disclosure at trial, where the issue is the defendant’s ultimate guilt or innocence.” Commonwealth v. Lugo, 406 Mass. 565, 571 (1990). Nondisclosure of a source of information that bears on a preliminary question, such as the suppression of evidence, “is more readily tolerated than the nondisclosure at trial of a source of evidence, where guilt or innocence is directly involved.” Commonwealth v. Snyder, 413 Mass. 521, 532 (1992). Although we are concerned here with the rulings of a judge made before trial, they implicate the same concerns that will arise at trial, namely, whether the defendant has a valid defense to the charges, i.e., his guilt or innocence. It is therefore appropriate to examine the defendant’s claim under the standard of “materiality,” as the Commonwealth argues.
In Commonwealth v. Lugo, supra at 574, the issue was whether disclosure of a so-called surveillance location would have provided material evidence needed by the defendant for a fair presentation of his case to the jury.
The facts of this case are analogous to those in Commonwealth v. Choice, 47 Mass. App. Ct. 907 (1999), where undercover police officers asked an individual where they could buy drugs, and the individual led them to the defendant, who sold drugs to the officers and was arrested. The defendant sought to discover the name of the “informant” to substantiate a defense challenging the credibility of the officers. In concluding that disclosure of the identity was required, the Appeals Court stated: “It was sufficient in this case that the Hispanic gentleman, whom the police did not regard as a confidential informant, was placed by the prosecution in a central role in this case. As such, he was also central to the defense.” Id. at 909. Similarly here, information about whether Doe was acting as a government agent, or whether she received inducements — inducements that may have influenced her actions — has direct bearing on the defense.
The Commonwealth argues that this case is controlled by Commonwealth v. Youngworth, 55 Mass. App. Ct. 30, 33 (2002), cert. denied, 538 U.S. 1064 (2003), where the Appeals Court concluded that disclosure of the informant’s identity was not required. That case does not concern an entrapment defense.
Relying on Commonwealth v. Ramos, 402 Mass. 209, 215-216 n.5 (1988), the Commonwealth argues that the defendant has not shown that the discovery information is material to his defense because his supporting affidavit lacks
The cases relied on by the Commonwealth to support its claim of privilege concern protection of an informant’s identity. See Commonwealth v. Brzezinski, 405 Mass. 401, 408 (1989); Commonwealth v. Youngworth, 55 Mass. App. Ct. 30, 32 (2002). Cf. Commonwealth v. McMiller, 29 Mass. App. Ct. 392, 406 (1990), quoting Commonwealth v. Curcio, 26 Mass. App. Ct. 738, 747 (1989) (“With the informer’s identity known, the Commonwealth could not claim the ‘informer’s privilege’ of barring [her] testimony . . .”).
Reference
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- Commonwealth v. Daniel J. Madigan
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