Commonwealth v. Coyne

686 N.E.2d 1321, 44 Mass. App. Ct. 1, 1997 Mass. App. LEXIS 245
CourtMassachusetts Appeals Court
DecidedNovember 20, 1997
DocketNo. 95-P-1013
StatusPublished
Cited by4 cases

This text of 686 N.E.2d 1321 (Commonwealth v. Coyne) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Coyne, 686 N.E.2d 1321, 44 Mass. App. Ct. 1, 1997 Mass. App. LEXIS 245 (Mass. Ct. App. 1997).

Opinion

Armstrong, J.

The three defendants were convicted of trafficking in cocaine in an amount exceeding 100 grams, G. L. c. 94C, § 32E(¿>)(3). The three were caught red-handed (indeed, videotaped) in the act of making the sale to undercover State police officer Michael Grassia. They had been put in touch with Grassia by one Lloyd Goldman, himself a seller of cocaine, who had been convicted but promised a lenient sentence for cooperating with the Commonwealth by introducing police officers to dealers who dealt in large quantities.

The contact was initiated by a call from Goldman to Grassia. Upon reaching Grassia, Goldman passed the telephone to the defendant Michael Coyne (Michael), who negotiated with Grassia and agreed to supply him with four and one-half ounces of cocaine for a price of $4,000. The deal was consummated later [3]*3that day, the defendant John Coyne (John) talking with Grassia several times to finalize the time and location. John and Grassia met at a Burger King restaurant at the appointed time, 10:00 p.m.; Michael and the defendant Douglas Hall (Hall) were watching, with the cocaine, from a car parked nearby. Grassia persuaded John to execute the transaction at his, Grassia’s, purported apartment, which was in fact owned and used for this purpose by the Attorney General’s narcotics and organized crime division. Grassia said that, for reasons of safety, he did not want more than two of the defendants to come up to the apartment, and, after some discussion, it was agreed that John would wait in the car while Michael and Hall would go up to the apartment to receive the $4,000 and witness the weighing and sampling of the cocaine. Hall stuffed the bag with the cocaine into his pants and went upstairs with Michael and Grassia. While going through the mechanics of settlement, Michael and Grassia tentatively worked out an eight ounce transaction for the following week. Hall admired Grassia’s scale, which handled up to 250 grams. Hall wanted to get one that large. Hall and Michael were counting the bills when the trap was sprung. All this was videotaped. Other officers arrested John in the car below.

Faced with the practical impossibility of denying the fact of the attempted sale, two of the defendants, the two Coynes, relied on the defense of entrapment. John testified that he had been the victim of Goldman’s wiles, that he had been unwilling to sell drugs and had refused Goldman’s enticements repeatedly, but that Goldman, knowing that John was addicted to cocaine, promised to “take care of him, big time,” meaning, according to John, that he would furnish John with cocaine to feed his habit if John would arrange for a sale to Goldman’s friend Grassia.2 Michael’s argument was that he was “derivatively entrapped” — a concept that “has been defined as follows: ‘If a person is brought into a criminal scheme after being informed indirectly of conduct or statements by a government agent which could amount to inducement, then that person should be able to avail himself of the defense of entrapment just as may the person who receives the inducement directly.’ ” Commonwealth v. Silva, 21 Mass. App. Ct. 536, 547 (1986), [4]*4quoting from United States v. Valencia, 645 F.2d 1158, 1168 (2d Cir. 1980), reh’g en banc denied, 669 F.2d 37 (2d Cir. 1981), affd after remand, 677 F.2d 191 (2d Cir. 1982).

1. John’s principal argument on appeal is that the judge erred in not giving an instruction in his jury charge to the effect that a defendant’s addiction to narcotic drugs should be taken into account in weighing the likelihood that he was, as he claims, entrapped. His counsel did not seek such an instruction, however, or object to the charge as given. Thus, assuming for purposes of decision that such an instruction should have been given in the circumstances (but see Commonwealth v. Quirk, 27 Mass. App. Ct. 258, 263 [1989]), we look to the possibility that a substantial risk of a miscarriage of justice may have resulted from its omission. This seems very unlikely. The judge did instruct the jury that “[inducement by a law enforcement agent may take many forms, including . . . promises of rewards . . . ,” adequately conveying, in succinct form, the message for which the defendant contends. The matter of John’s particular susceptibility to the reward assertedly promised could hardly have been lost on the jury. John’s testimony about repeated pleas by Goldman, coupled with occasional gifts of small amounts of cocaine, in an effort to break down John’s and Michael’s resistance, found no support in the testimony of Goldman, who denied making gifts of cocaine.3 John’s entrapment contention was further weakened by evidence that he had been twice before convicted of distribution of PCP (phencyclidine), also (like cocaine) a class B controlled substance. See G. L. c. 94C, § 31, Class B(a)(4) & (e)(4). “It is not unlawful for the government to set out bait for someone who takes the lure with alacrity.” Commonwealth v. Colon, 33 Mass. App. Ct. 304, 306 (1992). Altogether, it was not a promising case for an entrapment defense.

2. Michael’s principal contention on appeal is that the judge should have instructed the jury on the subject of derivative entrapment, on the theory that Goldman’s inducements to John were responsible for his (Michael’s) participation in the sale. [5]*5This defense also seems like a poor fit to the case, because there was no evidence of rewards to or harassment of Michael, and, as was said in the Silva decision, supra at 548, the entrapment defense does not apply where a government “agent induces a middleman to commit a crime, and the middleman, responding to the pressure upon him, takes it upon himself to induce another person to participate in the crime.” It may well be, moreover, that even if a derivative entrapment defense could theoretically apply in this situation, the jury’s rejection of John’s claim of entrapment made any error as to Michael’s derivative claim harmless. Compare Commonwealth v. Silva, 21 Mass. App. Ct. at 550.4

3. Michael also contends that the judge should have instructed that Goldman was a government agent as a matter of law, based on United States v. Annese, 631 F.2d 1041, 1048 (1st Cir. 1980), which held that where the government agent status was not in dispute, it was error for the judge to put the issue to the jury as a fact to be decided by them. The Annese decision was clarified in United States v. Alzate, 70 F.3d 199, 200 (1st Cir. 1995), where the court stated that “Annese certainly does not hold that it is reversible error to forego the instruction now claimed necessary where, as here, no such instruction is sought and there is no indication of prejudice.” In this case, no such instruction was sought, and there was certainly no substantial risk of a miscarriage of justice deriving from its absence.

4. As to Michael’s final contention: the judge, in our view, did sufficiently instmct on the Commonwealth’s burden to prove beyond a reasonable doubt the defendants’ predisposition to engage in the transaction.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

v. Vialpando
2020 COA 42 (Colorado Court of Appeals, 2020)
Commonwealth v. Eneh
925 N.E.2d 64 (Massachusetts Appeals Court, 2010)
Commonwealth v. Gollman
748 N.E.2d 1039 (Massachusetts Appeals Court, 2001)
Commonwealth v. Russo
731 N.E.2d 108 (Massachusetts Appeals Court, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
686 N.E.2d 1321, 44 Mass. App. Ct. 1, 1997 Mass. App. LEXIS 245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-coyne-massappct-1997.