Opinion
No. 15–P–1162.
11-22-2016
COMMONWEALTH v. Antonio R. DIXON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant, Antonio R. Dixon, was convicted of distributing cocaine and possessing cocaine with the intent to distribute. The charges arose from an undercover police buy of drugs from the defendant. On appeal, he argues that his trial counsel was ineffective for wrongfully pursuing an entrapment defense, which resulted in the admission of prejudicial propensity evidence. We affirm.
The defendant was found not guilty of two conspiracy charges. He was tried with a codefendant, who was charged with the same offenses. The jury acquitted the codefendant on all four charges.
Even setting aside the additional hurdles posed by raising this claim for the first time on appeal, see Commonwealth v. Zinser, 446 Mass. 807, 810 (2006), where no substantial risk of a miscarriage of justice exists, neither can there be ineffective assistance of counsel. See Commonwealth v. Curtis, 417 Mass. 619, 624 n. 4 (1994). In other words, on the record as it exists before us, the defendant cannot demonstrate that his counsel's strategy was manifestly unreasonable or that it caused him prejudice, both of which are required for a successful claim. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) ; Commonwealth v. Epps, 474 Mass. 743, 756–757 (2016).
The defendant argues that trial counsel's failure to object to, and his own elicitation of, inadmissible propensity evidence was manifestly unreasonable. The challenged evidence largely related to the police investigation of the defendant prior to the planned undercover buy, including the undercover officer's communication with a confidential informant. According to the defendant, such evidence essentially painted him as a drug dealer in the eyes of the jury.
The defendant nevertheless concedes that the evidence was relevant to the entrapment defense, which trial counsel pursued. The defendant claims that pursuit of the entrapment defense also was manifestly unreasonable. We disagree. "The threshold for a defendant to raise the entrapment issue is low...." Commonwealth v. Madigan, 449 Mass. 702, 707–708 (2007), quoting from Commonwealth v. Tracey, 416 Mass. 528, 536 (1993). Taking into account this low threshold and the overwhelming strength of the Commonwealth's evidence, defense counsel's strategic decisions were not the result of "serious incompetency, inefficiency, or inattention." Saferian, supra. Nor has the defendant suggested an alternative, substantial defense. See Commonwealth v. Urena, 417 Mass. 692, 701 (1994).
The judge denied trial counsel's request for an entrapment instruction.
Even if these strategic decisions were manifestly unreasonable, the defendant fails to show how he was prejudiced by counsel's actions. First, the complained of propensity evidence was void of detail. It provided no information about how or why the undercover officer recognized or knew the defendant, how he came to be a subject of an investigation, nor did it introduce any prior crimes or drug use by the defendant. Second, even assuming error in its admission, no prejudice resulted, given the overwhelming evidence against the defendant. See Commonwealth v. Cheremond, 461 Mass. 397, 411–412 (2012).
For the same reason, the defendant's claim regarding counsel's failure to seek limiting instructions to mitigate the effect of the challenged evidence also fails. As for any remaining claims that have not been specifically addressed, we have deemed them to be without merit and not warranting discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
--------
Judgments affirmed.