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Appeals Court of Massachusetts.



Decided: February 05, 2021

By the Court (Vuono, Rubin & Sullivan, JJ.1)


After a jury trial, the defendant was convicted of distribution of a class A substance in violation of G. L. c. 94C, § 32 (a), possession of a class A substance with intent to distribute, also in violation of G. L. c. 94C, § 32 (a), and possession of a class B substance with intent to distribute in violation of G. L. c. 94C, § 32A (a). The defendant moved in the trial court for permission to file late his notice of appeal, which was allowed. After the appeal was entered in this court, this court gave the defendant leave to file a motion to supplement the record pursuant to Mass. R. A. P. 8 (e), as appearing in 481 Mass. 1611 (2019).

An agreed to rule 8 (e) motion was filed in the trial court seeking to supplement the record to address unrecorded and inaudible portions of the trial that could not have been included in the transcript. In particular, the defendant sought to supplement the record to include portions where trial counsel recalled requesting an entrapment instruction and objecting to the trial judge's refusal to give such an instruction.

The trial judge denied the agreed upon motion without a hearing and without providing any reasons. The defendant filed a motion for a statement of reasons for the denial, and on the date of filing, the trial judge noted on the docket that he “takes no action” on the motion for statement of reasons, again without a hearing. The defendant filed a timely notice of appeal of the denial of the rule 8 (e) motion, and the two appeals were consolidated.

As to the issue of supplementation of the record, relevant only to the question whether the claim that the denial of the defendant's request for an entrapment instruction is a properly preserved claim of error, those portions of the transcript we do have make clear, as the Commonwealth concedes, that the defendant did, in fact, request such an instruction, and that that request was denied. The Commonwealth concedes, and we agree, that what is in the record is sufficient to preserve the claim of error, which we will review under the prejudicial error standard. Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).

This renders the appeal from the denial of the rule 8 (e) motion moot. We do, however, commend the defendant for his attempt to supplement the record. This court frequently finds claims waived due to insufficiencies in the recording and transcription of jury trials and other proceedings. Our rules specify that the burden is on the appellant to attempt to reconstruct the record in such circumstances. See Commonwealth v. Woods, 419 Mass. 366, 371 (1995). And given the risk that we might not have read the ambiguous record with its inaudible portion to preserve the claim of error here, the defendant was correct to seek to supplement the record pursuant to Mass. R. A. P. 8 (e).

Likewise, although we conclude in this case that what was in the record was sufficient to demonstrate the preservation of the claim of error here, it would be helpful to us for purposes of appellate review if judges would explain the reasoning behind their denials of motions, something that would have been helpful to us here had the transcript been even slightly less clear, and where the parties had agreed to the supplementation of the record.

Turning to the merits of the preserved claim of error, the defendant argues that he was entitled to an instruction on entrapment based on the importuning by an undercover police officer to get him to sell the officer drugs.

In the Commonwealth, the entrapment defense has two elements. First, that the defendant was induced to commit the crime by a government agent or one acting at his direction; and second, “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 Commonwealth v. Penta, 32 Mass. App. Ct. 36, 47 (1992). In order properly to raise the defense, “[t]he defendant has the initial burden ‘of producing some evidence of inducement by the government.’ ” Madigan, supra, quoting Penta, supra. The Commonwealth then bears the burden to prove beyond a reasonable doubt that there was either no government inducement or, if there was, that the defendant was predisposed to commit the crime. Madigan, supra.

The Supreme Judicial Court has held that “[t]he threshold for a defendant to raise the entrapment issue is low ․” Madigan, 449 Mass. at 707, quoting Commonwealth v. Tracey, 416 Mass. 528, 536 (1993). “The inquiry is 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's testimony.” Madigan, supra at 708, quoting Tracey, supra. “[M]ere evidence of solicitation is not enough to show inducement, but little more than solicitation is required to raise the issue.” Madigan, supra, quoting Commonwealth v. Miller, 361 Mass. 644, 652 (1972). “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 omitted). Madigan, supra, quoting Tracey, supra.

At trial, there was limited evidence concerning the interaction between the police and the defendant prior to the consummated drug sale. Officer Matthew Ryan of the Boston Police Department first contacted the defendant by cold call seeking to buy drugs and stating that he had one hundred dollars. Beyond this solicitation, the officer agreed that he called the defendant “many times” and testified that there was “conversation back and forth” regarding a potential drug sale. The day after the telephone calls, the day the sale was consummated, there also was “extensive texting” between the officer, posing as a drug user, and the defendant, with the purpose of negotiating the drug transaction.

The officer told the defendant that he was going through withdrawal, in order, he testified, to persuade the defendant to “come quicker.” The officer testified that he said that he “needed it by 7:00” or he was going “to get it somewhere else.” The transcript does not make clear whether this 7:00 deadline purported to be a result of the officer's claimed withdrawal sickness.

The fact of a two-day negotiation does not standing alone necessarily amount to the kind of importuning or aggressive persuasion that would amount to inducement, nor does the placement of a deadline upon threat of taking business to a competitor -- itself a plea to the putative seller's business interests – necessarily amount to inducement. A request to sell drugs to an addict because he is going through withdrawal, however, stands on different footing.

To be sure, there is no evidence here of the kind of pleading, and the powerful appeal to emotion and sympathy based on drug withdrawal, that have characterized some cases where an entrapment defense has been raised. See Commonwealth v. Denton, 477 Mass. 248, 249 & n.5 (2017). Nonetheless, the fact that the officer utilized a claim of withdrawal sickness to persuade the defendant to consummate the sale is sufficient on all the facts and circumstances here to cross the low threshold articulated in our cases for raising an entrapment defense.

Indeed, in that portion of the transcript in which the judge denies the request for an entrapment instruction that we do have before us, the judge says, “You can argue it, but I won't give that instruction.” In his closing, defense counsel did touch briefly upon the concept of entrapment but, of course, the jury were not instructed that they were permitted to acquit if the Commonwealth had not proven its absence beyond a reasonable doubt.

We conclude that on this record the defendant had reached the low threshold at which an entrapment instruction was warranted. Although, as the Commonwealth argues, there was certainly sufficient evidence to demonstrate predisposition beyond a reasonable doubt, and at any new trial the Commonwealth will be able to put in all admissible evidence of predisposition. The evidence on the question must be weighed by the jury, and not by the judges of an appellate court. Consequently, the judgments are reversed and the verdicts are set aside.

So ordered.


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