Yesterday the Massachusetts Appeals Court issued its opinion in Commonwealth v. Podgurski, 10-P-2135 holding that the trial judge committed reversible error when she refused to permit the defense to offer its entrapment defense and refused to instruct the jury on the issue. The facts in Podgurski are as follows. In September of 2005 Brockton Police began watching the defendant’s home. On October 5, 2005 an informant arranged a meeting between the defendant and an undercover police officer. This occurred at the defendant’s home. At that time Podgurski sold Percocets to the undercover officer. The next day another controlled buy was arranged, again at the defendant’s home. Surveillance watched the house during the deal. Shortly thereafter Podgurski left his home by car. He was stopped. He was arrested. The car was searched. A significant weight of drugs was found in the car. More than enough to support a trafficking indictment. A Search Warrant was obtained and Podgurski’s home was searched. More drugs were found as was some Drug Paraphernalia. The defendant testified that on the date of his arrest a man who knew through a drug related acquaintance came to his home and gave him Oxycontin and Percocets. Podgurski tried to show that he delivered the drugs because he was afraid for his family in that the person who provided him with the drugs was a member of a motorcycle gang and had coerced him into doing so. The defense tried to show that this person and the informant had also threatened his family. Defense counsel sought to establish that the informant was setting him up in order to get himself out of trouble. The trial judge rejected all defense efforts to introduce such evidence. As to this issue, the Massachusetts Appeals Court stated “Entrapment by law enforcement involves ‘implanting criminal ideas in innocent minds and thereby bringing about offenses that otherwise would never have been perpetrated.'” To establish an entrapment defense the defendant must simply show an inducement by the government to commit the crime. The district attorney must then show beyond a reasonable doubt that either the defendant was predisposed to committing the crime or that there was no government inducement. The defendant is permitted to inquire about the relationship between the government and the informant. Podgurski was denied this right. Podgurski was also deprived of an opportunity to elicit testimony that the informant threatened his family should he not deliver the drugs. The Appeals Court found this too reversible error as it bore on Podgurski’s state of mind. In essence, the defendant was denied his right to present a defense at trial.
Also at trial the prosecutor had the police weigh the drugs on a police scale in front of the jury. The drugs, Oxycodone, weight nearly sixty grams thereby satisfying the requirement for Trafficking Oxycodone over 28 Grams. The defendant objected to this strategy. The Massachusetts Appeals Court held that this was error. The district attorney failed to lay a proper foundation for the admissibility of such evidence. To do so, it must first show that the device is accurate. There must be a showing of proper calibration. This can be done by getting the device tested by a neutral, non-government agency or by using a known object with a know weight as a test for the device.
As a Massachusetts Criminal Lawyer I am often perplexed at how some judges refuse to apply the law and deny a defendant the right to present a defense. This issue is not that difficult. Podgurski’s lawyer did everything he was supposed to do to. He established that he had a good faith basis for his questions and his defense. The defense of entrapment is an affirmative defense that has its roots in common law. This defense is not new. It has been around for years. The defense contention that Podgurski is not a drug dealer is sound, reasonable and might likely succeed before a jury.
The Law Offices of Stephen Neyman defends the accused at all stages. We defend prior to a defendant being charged with a crime, at trial and for post-conviction purposes when necessary. Call us at 617-263-6800 or email us if you have a concern about a criminal matter.