Commonwealth v. Garcia

659 N.E.2d 741, 421 Mass. 686, 1996 Mass. LEXIS 12
CourtMassachusetts Supreme Judicial Court
DecidedJanuary 12, 1996
StatusPublished
Cited by10 cases

This text of 659 N.E.2d 741 (Commonwealth v. Garcia) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Garcia, 659 N.E.2d 741, 421 Mass. 686, 1996 Mass. LEXIS 12 (Mass. 1996).

Opinion

Greaney, J.

A jury in the Superior Court convicted the defendant of trafficking in more than one hundred (but less than 200) grams of cocaine, G. L. c. 94C, § 32E (b) (3) (1994 ed.); trafficking in more than fourteen (but less than twenty-eight) grams of cocaine, G. L. c. 94C, § 32E (b) (1); [687]*687and possession of cocaine with intent to distribute, G. L. c. 94C, § 32A (1994 ed.). The defendant appealed and we granted his application for direct appellate review. On appeal, the defendant argues error in the judge’s refusal to give a so-called “sentencing entrapment” instruction which was requested by his trial counsel. The instruction was intended to support the defendant’s contention that, while he had not been improperly induced by an undercover police officer to sell small quantities of cocaine, he had been entrapped to sell larger amounts, which the undercover officer had calculatedly demanded in order to obtain convictions of more serious trafficking charges and the imposition of higher mandatory minimum sentences. We conclude that the instruction requested by the defendant was properly denied by the trial judge, and that she correctly instructed the jury on the issue of entrapment. Accordingly, we affirm the defendant’s convictions.

The relevant background may be summarized as follows. In October, 1991, a new Marlborough police officer was assigned to conduct an undercover operation at a local lounge. The undercover officer’s supervisor indicated that the object of the operation was to buy the largest amount of cocaine possible. When the supervisor instructed the undercover officer as to the amounts to purchase, he had in mind that a minimum of fourteen grams was needed to support a trafficking charge, and that the purchase of one hundred grams would result in a more serious trafficking charge and in a specific enhanced penalty.

The undercover officer first purchased cocaine from the defendant on October 24, 1991. She approached him and asked if he had anything she could buy. In response to her request for “a half’ (namely, one-half gram), the defendant stated a price of $50. In exchange for this sum, the defendant approached another man in the lounge and subsequently gave the undercover officer a small bag of white powder. Another purchase of “a half,” by the undercover officer from the defendant, which progressed along the lines of the earlier purchase, occurred on November 15, 1991.

[688]*688On November 15, 1991, the undercover officer indicated to the defendant that she had some friends who wanted to buy one-half ounce of cocaine. The defendant did not know the price for that quantity but promised to find out, and two days later informed the undercover officer that the price would be $525. The undercover officer advised the defendant that she would tell her friends.

On November 19, the defendant became upset after learning that the undercover officer had just purchased some cocaine from someone else because the price was lower. She asked if he could obtain his cocaine at a cheaper price, and he said he would have to find out.

On November 22, the defendant told the undercover officer that he had something for her for $35. She said she did not want anything at that time, but that she was still gathering money from her friends to complete the one-half ounce purchase.

On November 25, the undercover officer bought “a half’ from the defendant for $35, and inquired about the one-half ounce purchase. The defendant said, “You wanted [seven] or [eight] grams, right?” The undercover officer replied that she wanted one-half ounce. He asked her the weight of that quantity, saying he was not “up on the weights, he wasn’t [too] familiarized with them.” The defendant also asked what he had quoted her for a price, and she said $525. They arranged to make the sale the following Tuesday.

On Tuesday, November 26, the undercover officer joined the defendant in the lounge and told him she was “all set,” but that, in addition to the one-half ounce, she also wanted to purchase three one-half gram packets. (The undercover officer’s supervisor had told her to make this request to ensure that the amount of cocaine purchased would exceed fourteen grams.) A price of $620 was agreed on. The defendant obtained and delivered to the undercover officer a packet of cocaine that weighed between sixteen and eighteen grams. He also gave her three additional one-half gram packets.

On November 27, the defendant told the undercover officer that he had learned an ounce of cocaine would cost [689]*689$1,100, and that she should let him know when she needed it and he would be able to obtain it. He also asked the undercover officer whether she had obtained anything for her one-half ounce. The undercover officer indicated that she had received some cocaine, and the defendant replied, “See how everything works out? You got your stuff and I get something.”

On December 3, the defendant asked the undercover officer if she still wanted to purchase two ounces of cocaine. She said she did, and the defendant said the cost would be $2,100. The next day the defendant told the undercover officer that he had heard she was a “snitch” working for the police, and that in his country, snitches were killed. The defendant also told her that he liked her, and that, even if she sent him to jail, he would not hate her. He said he was selling drugs to support his children.

On December 13, the defendant asked the undercover officer if she still wanted two ounces of cocaine. She said (as she had been instructed to by her supervisor) that she now wanted four ounces. The defendant appeared upset, saying, “[You are] confusing [me], at first [you] wanted one ounce and now [you] wanted four.” The undercover officer replied, “[L]oak, you told me you can get it, right?”

On December 16, the undercover officer spoke to the defendant again. He said he would have to see whether he could obtain four ounces of cocaine. She purchased another one-half gram. With her permission, the defendant ingested part of the cocaine, kept part of it, and gave the rest to her.

On December 19, the undercover officer again told the defendant that she wanted to purchase four ounces of cocaine. He replied, “[F]our ounces, I don’t know.” That evening the defendant sold her another small bag of white substance, and indicated that the price for four ounces would be $1,100 per ounce. They agreed to consummate the sale.

The following evening, the defendant met the undercover officer. They drove to a location where the defendant met and left with another man. Five minutes later, the defendant returned and said to the undercover officer, “Okay, let’s go.” [690]*690They drove to a parking lot, where police subsequently arrested the defendant with four bags of cocaine in his hand. The four bags contained a total of 112.14 grams of cocaine.

Based on the evidence in the case, the defendant’s trial counsel requested the jury instruction set forth in the margin.2 The judge declined to give the instruction, and the defendant’s trial counsel preserved a proper objection. The judge instructed the jury at length on the issue of entrapment, as it pertained to all the charges.

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Bluebook (online)
659 N.E.2d 741, 421 Mass. 686, 1996 Mass. LEXIS 12, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-garcia-mass-1996.