Opinion
19-P-1611
05-10-2021
COMMONWEALTH v. Adalberto SANTANA, Jr.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial, the defendant, Adalberto Santana, Jr., was convicted of one count of distribution of a class B substance, in violation of G. L. c. 94C, § 32A (a ). On appeal, he argues that the trial judge erred in (1) failing to instruct the jury on entrapment, (2) excusing two prospective jurors for cause, and (3) considering his drug addiction at sentencing. Additionally, he asserts that the police misconduct was so egregious in this case that the indictments against him should have been dismissed. For the reasons that follow, we affirm.
The defendant was originally indicted for distribution of a class B substance, subsequent offense, in violation of G. L. c. 94C, § 32A (b ), and conspiracy to violate drug laws, in violation of G. L. c. 94C, § 40. The distribution charge was ultimately amended to remove the subsequent offense portion of the charge. Further, following trial, the Commonwealth entered a nolle prosequi on the charge of conspiracy to violate drug laws.
Background. We begin by summarizing the testimony of Simone Farnum, which the defendant contends raised the defense of entrapment. See Commonwealth v. Tracey, 416 Mass. 528, 529 (1993). We reserve additional facts for our discussion of the other claims asserted.
In August of 2017, Farnum, the defendant's long-term partner, was addicted to drugs. On August 17, 2017, she was experiencing symptoms of withdrawal from heroin, and was feeling "[a]wful, sick, achy, nauseous, weak, like the worst flu you could have." At approximately 10 P.M. that evening, Farnum decided to walk five to six miles from where she and the defendant lived to First Street in Pittsfield, with the intent to obtain heroin. The defendant objected, but in the end, agreed to walk with Farnum to ensure her safety. However, when the pair reached First Street, they parted ways because the defendant "didn't want any part of the whole process of what [Farnum] needed to do."
Farnum knew this to a be a "heavy drug-ridden area." She testified that there were periods of time where she would walk to this area three times per day.
As Farnum was walking alone, she encountered a woman that she knew, Molly Frasca, speaking to two men inside of a vehicle that was pulled over to the side the road. The two men, who unknown to Farnum were undercover police officers, had requested heroin from Frasca. Frasca was unable to help the men, and she instead asked Farnum to assist them. Farnum got inside the vehicle with the two men, and they informed her that they "were looking for some dope." They inquired about the price of a "bun," which Farnum understood to be a bundle of ten bags of heroin. The men offered Farnum a few bags of heroin in exchange for her finding them someone to purchase the bundle from. As a result, Farnum made a phone call to another individual, whom she knew sold heroin, and arranged for the men to purchase the heroin from him. After the two men purchased the bundle of heroin, as promised, they gave two of the bags to Farnum. At this point, the men inquired whether Farnum was able to obtain a "40 of crack cocaine" for them, and in exchange, they would give her ten dollars.
Farnum testified that "dope" refers to heroin.
Farnum testified that she agreed to facilitate the transaction for the men because she had no money and otherwise would not have been able to purchase heroin.
Based on her understanding of drug terminology, Farnum understood that the men were looking for forty dollars’ worth of crack cocaine.
Farnum then called the defendant. She informed the defendant that she was with two men who were looking to purchase crack cocaine, and asked whether he knew anybody who was selling it. The defendant told Farnum that he did not, but stated that she might be able to find "G.," also known as Garrett, "down by the trap." Farnum testified that Garrett had previously obtained drugs for her. The two men drove Farnum to the location of the "trap," and there, Farnum got out of the car to look for Garrett. Before allowing Farnum to leave the vehicle, however, the two men required her to leave behind her purse, so that they could ensure she would not flee with the money that they had given her. Once out of the car, Farnum found Garrett and handed him the money. Garrett stated that he would be back with the drugs, and Farnum returned to the vehicle to wait for him.
Farnum testified that a "trap" is a drug house.
Farnum testified that using drug addicts are often known to take money and not return with drugs.
While Farnum was back inside the vehicle, the men grew anxious about how long Garrett was taking to return. Farnum began feeling unsafe and wished to leave, but she did not feel comfortable leaving behind her belongings, which included her identification with her address. Farnum called the defendant again to tell him what was happening, and that Garrett was taking a while to return with the drugs. She informed the defendant that she was getting nervous because the men would not let her exit the vehicle without leaving her purse behind. After their phone call concluded, Farnum got out of the car to wait for Garrett. Shortly thereafter, she saw two men walking toward her: Garrett and the defendant. Garrett handed Farnum a knotted plastic bag of crack cocaine, and the defendant, trailing behind him, walked to the vehicle with Farnum.
Farnum testified that the men were not walking together; the defendant was walking approximately "five steps behind" Garrett.
Farnum asked the men if they could give her and the defendant a ride home, and the men agreed. The two got inside the vehicle, and Farnum requested the ten dollars that the men had promised her. They instead told her to "take a piece" of the drugs they had just purchased. Farnum attempted to open the plastic bag, but was unable to open it with her teeth or fingernails. She asked the defendant to open it for her. The defendant took the bag, bit off the knot, and handed the bag of crack cocaine back to Farnum. Farnum removed some of the drugs from the plastic bag, and gave the remainder of the bag to the men. Almost immediately thereafter, the police activated their emergency lights, pulled the vehicle over, and placed Farnum and the defendant under arrest.
Discussion. 1. Entrapment instruction. The defendant contends that the trial judge erred in failing to provide an entrapment instruction to the jury because Farnum's testimony was sufficient to raise the defense of vicarious or third-party entrapment. See Commonwealth v. Silva, 21 Mass. App. Ct. 536, 547 (1986). Though the defendant requested an entrapment instruction at trial, he did so on different grounds. Thus, we review to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Rivera, 425 Mass. 633, 637 (1997).
"Entrapment ... may occur as the result of conduct by [third parties who in effect are acting as government] agents or as a result of governmental action through private citizens." Silva, 21 Mass. App. Ct. at 547-548, quoting United States v. McLernon, 746 F.2d 1098, 1109 (6th Cir. 1984). To raise the issue of third-party entrapment, there must be "some evidence showing that the government's inducement of the [third party] has been communicated to the defendant or evidence showing that the [third party] was consciously recruited by the government to induce the defendant to join in the commission of the crime." Id. at 548. The entrapment defense is inapplicable however "where a government ‘agent induces a [third party] to commit a crime, and the [third party], responding to the pressure upon him [or her], takes it upon himself [or herself] to induce another person to participate in the crime." Commonwealth v. Coyne, 44 Mass. App. Ct. 1, 5 (1997), quoting Silva, supra at 548. To determine whether the defendant has met his burden in raising the issue of entrapment, we consider, without taking into account credibility, "whether there is any evidence sufficient to raise the defense, even if the evidence is unsubstantial and even if the evidence comes solely from the defendant[ ]." Tracey, 416 Mass. at 536.
Here, the defendant failed to meet his burden. The defendant contends that Farnum's testimony demonstrated that she, while acting as a government agent, communicated the police's inducement of her to the defendant. However, what she communicated to the defendant did not rise to the level of inducement. Conduct indicative of inducement may include "aggressive persuasion, coercive encouragement, lengthy negotiations, pleading or arguing with the [third party], repeated or persistent solicitation, persuasion, importuning, and playing on sympathy or other emotion." Tracey, 416 Mass. at 536. Mere solicitation is insufficient. See id.
When Farnum called the defendant to tell him that Garrett was taking a while to return with the drugs and that the two men were growing anxious, she had already purchased the drugs from Garrett. She was not communicating to the defendant any inducement by the police to commit a crime, but rather, in her own words, she called the defendant because she was nervous. The men would not let her exit the vehicle without leaving behind her purse, and she feared that Garrett would not return with the drugs.
Perhaps more importantly, she did not call the defendant on behalf of the police or at the request of the police. Rather, responding to pressure by the men, Farnum took it upon herself to call the defendant and seek his assistance. The fact that the defendant responded out of his concern for Farnum reveals further that his involvement did not come about as a result of government activity. See Silva, 21 Mass. App. Ct. at 549 (where defendant acted out of loyalty and friendship to third party, no sufficient nexus between government activity with third party and defendant's conduct). The entrapment defense does not apply to such circumstances. See id. at 548. Thus, we discern no error. In any event, even if we were to conclude that the police conduct here, i.e. the limiting of Farnum's freedom of movement, constituted inducement, we nevertheless see no substantial risk of a miscarriage of justice from the failure to sua sponte give an entrapment instruction.
2. Excused jurors. During jury empanelment, at the request of the defendant, who is Hispanic, the judge asked a series of race-related questions to the group of prospective jurors. He instructed the jurors not to respond to the questions at the time, but to approach sidebar when their number was called if their answer to any of the posed questions would have been in the affirmative. One of the questions, which the Commonwealth requested, asked the jurors: "do you believe that a Hispanic is more likely to be targeted by law enforcement?"
When prospective juror no. 40's number was called, she went to sidebar and the following exchange took place between the judge and the prospective juror:
Q.: "Okay. [prospective juror no. 40], you raised your hand or would've raised your hand to one or more of my questions?"
A.: "Yes."
Q.: "Which question?"
A.: "The last question about officer's racial targeting."
Q.: "Yes. What do you think about that?"
A.: "I think it's true."
Q.: "Okay."
A.: "And prevalent."
Q.: "And would that affect your ability to be fair in a case?"
A.: "I think so."
Q.: "Ma'am, you're excused."
The prospective juror was then excused for cause without objection from the defendant or the Commonwealth.
Later during attorney-conducted voir dire, the prosecutor asked the group of prospective jurors about their view of undercover law enforcement officers and whether they believed such officers should engage in drug transactions. Prospective juror no. 22 indicated that she had recently had an experience with two undercover police officers from New York, who had crossed over into Massachusetts and were asking for information that she did not believe they legally had a right to obtain. She indicated that she was "suspect ... of their gathering techniques." After the voir dire concluded, the judge called prospective juror no. 22 to sidebar for an individual voir dire. The following exchange took place:
Q.: "Okay. [prospective juror no. 22], you had provided us with some information about your interaction with New York State troopers or police officers. And in my sense it wasn't a particularly favorable interaction with them?"
A.: "No, it wasn't."
Q.: "And you were somewhat critical of what they were doing."
A.: "Uh-huh."
Q.: "Okay. When did this occur?"
A.: "Last month during the disc festival that happened in Stephentown."
Q.: "So it's fairly recent?"
A.: "Yeah."
Q.: "And how many officers were there?"
A.: "Two."
Q.: "Okay. And how long were they there -- present at the --"
A.: "About 30 minutes."
Q.: "About 30 minutes."
A.: "Yep."
Q.: "Okay. Has this been your only substantive interaction with law enforcement?"
A.: "Yes."
Q.: "Okay. Now, as a result of that you've come to certain opinions at least about the New York State troopers and --"
A.: "Oh no, they were undercover cops."
Q.: "Undercover police officers."
A.: "Undercover (inaudible)."
Q.: "Okay."
A.: "Yeah."
Q.: "My question is is that going to wash over and affect your ability to be fair and impartial in this case?"
A.: "I hope not. I think I would be very astute or I don't know if I would question information more, but I would review it carefully I think. And I would anyway, but I think would have that in the back of my head as suspect."
Q.: "Okay. Well, what I'm trying to get at if it means that you would be very careful in any decision you make that's what we want jurors to do --"
A.: "Right."
Q.: "-- and we appreciate that."
A.: "Yes. Yeah."
Q.: "If it means that you're now a little skeptical of anyone who may be undercover, well, that's different. Then you're using an experience and your decision may be based on something outside the courtroom which may not be something that is employed generally or you can --"
A.: "Right. Yeah. I would like to say I would hope not."
Q.: "Okay."
A.: "-- but I'm not sure if that would not -- seeing that it's so fresh in the sense of then I really felt the crossed the lines, so it really formed an impression on me."
Q.: "I mean, that's the sense that I had --"
A.: "Yeah."
Q.: "-- was what they were doing was wrong. You called them on it, right?"
A.: "Yeah."
Q.: "And now we're going forward with that."
A.: "Right."
Q.: "So you think it will be in the back of your mind?"
A.: "I think -- I think it will be, sir."
Q.: "And may play a role in this?"
A.: "It could, yes."
Q.: "Okay. I'm going to excuse you. Thank you, ma'am."
The judge then excused the prospective juror for cause, again without objection from the defendant or Commonwealth.
The defendant now contends that it was an abuse of discretion for the judge to excuse for cause both prospective juror no. 40 and prospective juror no. 22. We, however, disagree.
"A criminal defendant is entitled to a trial by an impartial jury pursuant to the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights," Commonwealth v. Williams, 481 Mass. 443, 447 (2019), and "[t]he presence of even one juror who is not impartial violates" that right. Commonwealth v. Vann Long, 419 Mass. 798, 802 (1995). "Thus, if it appears that a juror might not stand indifferent, the judge must hold an individual voir dire, the scope of which is within the judge's sound discretion." Williams, supra. It is also within the judge's discretion to determine whether the prospective juror stands indifferent. See id. "[T]his discretion is not unfettered; the judge's conclusion must be supported by a voir dire that sufficiently uncovers whether the prospective juror can fairly evaluate the evidence and follow the law." Id. Absent an abuse of discretion, we will not disturb a judge's conclusion regarding a juror's impartiality. Commonwealth v. Delacruz, 99 Mass. App. Ct. 189, 194 (2021).
When prospective juror no. 40 indicated to the judge that she believed that Hispanic people are targeted by the police, the judge did not summarily excuse her for holding that belief. Rather, as he was required to do, the judge asked the prospective juror whether that belief would affect her ability to be fair and impartial. See Williams, 481 Mass. at 453 ("when a prospective juror states an opinion or belief, whether it is specific to the case or not, the judge must satisfy himself or herself that the prospective juror will be able to fairly evaluate the evidence and apply the judge's instructions on the law"). Prospective juror no. 40 responded that she thought that it would. As a result, the judge was not sufficiently satisfied that the prospective juror had the ability to be impartial, and accordingly, he excused her for cause. Though the defendant contends that the judge should have asked additional questions to assess prospective juror no. 40's impartiality, "[a] trial judge, who is aware of the facts of a particular case and can observe firsthand the demeanor of each prospective juror, is in the best position to determine what questions are necessary reasonably to ensure that a particular jur[or] can weigh and view the evidence impartially." Commonwealth v. Lopes, 440 Mass. 731, 736 (2004). We discern no abuse of the judge's discretion.
Specifically, the defendant argues that, because the judge asked the juror whether she could be impartial in "a" case and not in "this" case, the judge was required to inquire further after the juror expressed that her impartiality would in fact be affected. We are not persuaded that, on these facts, the distinction is so meaningful as to rise to the level of an abuse of the judge's discretion. See Commonwealth v. Lopes, 440 Mass. 731, 736 (2004) ("[t]he scope of voir dire rests in the sound discretion of the trial judge").
Nor do we perceive any abuse of discretion in the judge's decision to excuse prospective juror no. 22 for cause. As illustrated above, the individual voir dire of prospective juror no. 22 was comprehensive. In a case involving undercover police officers, the prospective juror expressed that she had a recent negative experience with, and as a result negative view of, undercover officers. When the judge asked whether the prospective juror could nevertheless be impartial, she vacillated in her responses. Initially, she stated that, while she would be suspect, she would be "very astute." Ultimately, however, the juror expressed that she was not sure if she could fairly decide the case because her personal experience would be in the back of her mind and may play a role in the case. The judge, who perceived the prospective juror and her demeanor firsthand, was in the best position to determine whether she could be impartial. Commonwealth v. Rios, 96 Mass. App. Ct. 463, 472 (2019). The decision to excuse her was well within the judge's broad discretion.
3. Sentencing. The defendant seeks a new sentencing hearing because he claims that the judge's imposed sentence improperly punished him for his drug addiction. The claim is without merit.
"In fashioning an appropriate and individualized sentence that takes account of a defendant's personal history, a judge has discretion to weigh ‘many factors which would not be relevant at trial,’ including the defendant's behavior, background, family life, character, history, and employment." Commonwealth v. Plasse, 481 Mass. 199, 205 (2019), quoting Commonwealth v. Mills, 436 Mass. 387, 399-400 (2002). Specifically, where the defendant "requests a judge's consideration of his or her substance abuse issues," it is appropriate for the judge to factor those issues into the calculus. Id. at 206.
Here, at sentencing, defense counsel urged the judge to consider that the defendant's conviction was related to drug use. In response to this urging, the judge agreed and stated during the hearing, "I do think that he's a drug addict given what I've seen in the record and given what I saw in evidence." The defendant cannot now challenge on appeal the consideration of a proposal he made to the judge. See Plasse, 481 Mass. at 206, citing Lannon v. Commonwealth, 379 Mass. 786, 792-793 (1980). Moreover, there is no indication the judge used the defendant's drug addiction against him in fashioning the sentence. In fact the judge considered the defendant's addiction as a mitigator when explaining his sentence in open court. Accordingly, we discern no abuse of the judge's discretion in taking into account the defendant's drug use, in conjunction with various other factors, when sentencing the defendant. A new sentence hearing is not warranted.
Both of the undercover officers testified at trial that it was the defendant, and not Farnum, who took the ten dollar "pinch" of crack cocaine in exchange for arranging the purchase. Further, another officer testified that, when he asked the defendant where the ten-dollar pinch of crack cocaine was, the defendant responded, "I swallowed that before the lights even came on because I'm an O.G." From his experience, the officer understood "O.G." to mean "original gangster." There was also evidence in the record that the defendant had been previously convicted of a drug-related offense, although the conviction had been vacated.
--------
4. Egregious police conduct. The defendant contends that the police conduct was so egregious in this case that dismissal of the indictments was constitutionally required. We are not convinced. "[E]gregious government misconduct may violate due process," and "dismissal of an indictment may be necessary when the government's conduct is so egregious as to prejudice the defendant's right to a fair trial." Commonwealth v. Monteagudo, 427 Mass. 484, 485 (1998). The focus is "whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power." Id. at 486, quoting United States v. Russell, 411 U.S. 423, 441 (1973) (Stewart, J., dissenting). Police conduct may be found egregious where it involves "coercion, violence or brutality," "persistent exploitation of personal weakness," or where it is "shocking, outrageous, and clearly intolerable." Monteagudo, supra at 487.
Though the police procured heroin through Farnum, who testified that she was addicted to drugs at the time, the evidence did not demonstrate a "persistent exploitation of personal weakness." Commonwealth v. Shuman, 391 Mass. 345, 355 (1984). The police initially sought to purchase heroin from Frasca, and when Frasca was unable to assist them, Farnum, at the request of Frasca, agreed to do so. The police did not specifically target Farnum, nor did the evidence indicate that they intentionally preyed on her need for heroin. Notably, the police, by Farnum's own testimony, at no time sought out the defendant or requested his involvement in any way. Simply stated, the conduct here was not so egregious as to bar the defendant's conviction. See Commonwealth v. Lacend, 33 Mass. App. Ct. 495, 498 (1992) (undercover officer selling cocaine to defendant was not egregious misconduct barring conviction).
Judgment affirmed.